Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 65 - New and compelling evidence

Amendment moved [this day]: No. 308, in 
clause 65, page 40, line 17, leave out subsection (5).—[Mr. Grieve.]

James Cran: I remind the Committee that with this we are discussing amendment No. 379, in
clause 65, page 40, line 18, after 'have', insert 'not'.

Dominic Grieve: Having a meeting with constituents in the Lobby and getting to Committee on time nearly caused me problems, but I return to the matter of omitting subsection (5). The Minister will recall that I explained that I am in doubt as to its meaning, so it would be helpful if he explained what it is. My concern is that it would be possible, if I have understood correctly, for evidence to be admitted at a second trial that would not have been admissible at the first. For example, as a result of subsection (5), would evidence of bad character, whose admissibility we shall facilitate in a later part of the Bill, be admissible at a retrial even though it was not admissible at the first?
 I remind the Minister of my previously expressed concern about the legitimate opportunities open to the defence to make choices based on the existing rules of evidence—for example, circumstances in which a defendant may have exercised the right to silence. That right has since been abrogated in its absolute sense, because it is possible to draw inferences from silence that it might not have been possible to draw when the offence was alleged to have been committed. The Committee should be aware that we might end up addressing problems of unfairness because the rules under which a retrial will take place differ from those for the original trial and investigation. 
 That is a discrete point, and I do not want to spend any more time on it as I should like to hear from the Minister why subsection (5) exists if not for that purpose, what its purpose is and whether we need it.

Hilary Benn: One could conceive of circumstances arising from the time when DNA evidence was in its early stages and regarded as inadmissible because it was not a sufficiently tried and tested method of science for determining identity. There would not be many such circumstances, but subsection (5) would apply to that one.

Lady Hermon: Will the Minister address the point that a person is entitled to a trial within a reasonable time? He said that when DNA was discovered almost 18 years ago, it may have been a little unreliable. Is he suggesting that that sort of evidence could now be used in retrials? Would such trials take place within a reasonable time under the European convention?

Hilary Benn: That evidence might be used, subject to the tests that we have discussed in relation to clauses 65 and 66. Science has moved on since DNA samples were first taken. Then, quite a blob of material was needed—I put it in a non-scientific way—to establish the required information, and that can now be done from a much smaller blob or piece of material. That does not stand in the way of the general thrust of the clause, although I recognise the hon. Lady's concern and opposition to the provisions, and nor do I think that it stands in the way of a fair trial. Clause 66(2) refers to the possibility of a fair trial and clause 66(2)(b) to the length of time involved. The Court of Appeal will have to weigh those things in the balance when it decides whether a retrial can be considered.
 Admissibility is not an issue, because the court will have to decide whether any new evidence is compelling and indicative of guilt. It will not be concerned with whether the new evidence would have been admissible if it had been available at the original trial. That would have been a matter for the trial judge at the time, dealt with in the context of the trial as a whole. Here, however, the court will have to be concerned with the value of new evidence in the context of a potential retrial.

Dominic Grieve: I understand the Minister's point. Indeed, as I look at the scope of the clause and the fact that it relates specifically to the Court of Appeal's consideration, I can see the force of his argument. However, there would still be a problem if someone could say about a retrial, ''As well as the DNA evidence, we are in a position to put before the court the previous character of the defendant.'' Until now, that could not happen. Are we likely to see that happening in applications to the Court of Appeal? If so, the Committee should be aware of it.

Hilary Benn: Indeed, that could be a consideration, which would depend on the facts of the case and the nature of the evidence. The hon. Gentleman anticipates later clauses on bad character. However, in so far as it has clarified the matter, the amendment has been helpful.

Simon Hughes: I wondered whether the Minister would introduce any argument or research to support his proposition. I skimmed through various papers to see whether anyone had addressed it specifically. The Home Affairs Committee did not appear to do so, and nor did the White Paper. The Law Commission report No. 267, ''Double Jeopardy and Prosecution Appeals'', which predated that consideration, addresses the question indirectly. Recommendation 3 at paragraph 4.69 states:
''We recommend that
(1) the new exception should be available only where the court is satisfied that the new evidence
(a) appears to be reliable; and
(b) when viewed in context, appears at that stage to be compelling;
(2) the context in which the court views the new evidence for this purpose should comprise the issues that arose at trial, whether or not a matter of dispute between the prosecution and the defence''.
 By implication, that means that the Law Commission did not envisage inclusion of matters that did not arise at trial, and issues that were excluded by virtue of the evidence would clearly not have arisen at the trial. 
 I share that concern, so I want to ask a neutral question about whether any work has been done to analyse what the provision will mean in practice. I have not seen any, and if no analysis has been made, the situation is more dangerous than it would be if the Government could confirm that the university of London or the institute of criminology at the university of Cambridge had considered the issue. I am not aware that the Government have ever put forward before the argument that we have heard today, and I have never seen any assessment of its implications or any expert advice on it. 
 We should resist taking such a dangerous and controversial course without knowing its implications. Does the Minister have any such information? If not, will he make inquiries to find out whether any research has been done and put any such information in the public domain, as the point seems to raise issues that have not previously been considered?

Dominic Grieve: The hon. Gentleman may have hoped that the Minister would respond, but he has not sought to do so.
 It is logically arguable that when the Court of Appeal considers whether evidence is reliable and substantial, it should do so on the basis of current tests of admissibility. As I listened to the Minister, I appreciated that the subsection was included to cover evidence, such as DNA evidence, that might not have been admissible 25 years ago because people did not know about it, but which should be admissible now that they do. 
 I had tabled another amendment to add the word ''not'' after the word ''would'' in order to clarify what is otherwise a slightly opaque phrase. The Minister laughed during a previous sitting when I talked about ''calling a spade a spade.'' For the purposes of subsection (5), it is actually irrelevant whether any evidence would not have been admissible—rather than would have been admissible—in earlier proceedings to which the appeal relates. That is obvious when one reads the whole clause. 
 My concern is that the provision could be applied not only to forensic scientific evidence but to a wider range of evidence under the new rules of admissibility. That would not be new evidence. It would be old evidence that could not be admitted in the past but could be now under new rules, such as the rules relating to bad character. The bad character of a defendant would have been known at the time of the original trial, just as it would be known when decisions about a retrial were being made. Whereas, in the past, it would have been regarded as an irrelevancy except if he were convicted, it might now be regarded as highly relevant and capable, with other factors, of being probative because inferences could be drawn from it. 
 That issue interests me in two ways. First, I am interested in whether the Court of Appeal could be 
 invited to take that evidence into account in deciding whether a retrial should take place. Secondly, I am interested in whether the evidence could be admitted at the retrial under the ordinary rules of court that operate at the time, which would be the rules of court of 2003, not the rules of court that applied when the offence was committed—in, for example, the 1970s. The Committee is entitled to clarification so that we may understand the impact of the subsection. I leave to one side for the moment whether it is right or wrong. I just want to know where we stand.

Hilary Benn: The hon. Gentleman is right. Any retrial would clearly have to take place under the current rules of evidence and procedure. There could not be a retrial in aspic under the rules that applied at the time of the original trial. In asking the Court of Appeal to consider its functions under the clause, it cannot be right to ask it to second-guess what the ruling might have been on the earlier occasion.

Dominic Grieve: That must be right. Of course, when it comes to the question of an inference to be drawn from silence at an interview, if the original interview under caution took place in 1975, I assume, applying the ordinary rules, that—although the law may since have changed so that an inference can be drawn—no inference could be drawn because the key issue would be what was said at the time that the caution was administered, and what that caution was. That highlights for me the practical difficulties that might arise, particularly in the case of retrials relating to investigations and first trials that took place a considerable time ago.
 The Minister did not quite answer my second question, which went back to the specific Court of Appeal proceedings. For instance, a prosecution might seek to adduce reliable and substantial evidence by which it could be considered highly probable that a person was guilty of an offence. That evidence might comprise not only the fact that DNA can now be provided but the fact that it will now be possible to cite, in the course of the trial, the defendant's previous bad character and the fact that he had committed similar offences in the past, none of which would have been possible at the time of the first trial. Would it be legitimate to say to the Court of Appeal that it should take all that into account in deciding whether a retrial should take place? I think that the Court of Appeal will be in a position to do that. If I am wrong, it would be helpful to know that now.

Hilary Benn: I am happy to confirm that the circumstances that the hon. Gentleman describes could apply.

Dominic Grieve: I am grateful to the Minister. That was the purpose of the amendment. I do not intend, at this stage, to take the matter any further because, while I fully understand the logic of having the clause to protect the new DNA evidence—otherwise the system would founder and be useless—this other aspect raises interesting questions. I have not seen anything to suggest that the professional bodies, never mind the public, have fully taken it into account. We may wish to revisit the matter on Report, or the Minister might
 consider it further and provide clarification in writing—or otherwise—as to how he would expect the system to work. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:— 
 The Committee divided: Ayes 12, Noes 6.

Question accordingly agreed to. 
 Clause 65 ordered to stand part of the Bill.

Clause 66 - Interests of justice

Dominic Grieve: I beg to move amendment No. 266, in
clause 66, page 40, line 29, leave out paragraph (a) and insert—
'(a) whether a fair trial pursuant to the order would occur;'.

James Cran: With this it will be convenient to discuss amendment No. 332, in
clause 66, page 40, line 29, leave out 'it is likely that'.

Dominic Grieve: The clause deals with the interests of justice test. Subsection (2) says:
''That question is to be determined having regard in particular to—
(a) whether it is likely that a fair trial pursuant to the order would be possible''.
 The amendment would do two things. First, it would beef up the test and make it quite clear that no retrial should take place unless the court was satisfied that a fair trial would occur. Secondly, it provides the Committee an opportunity to consider subsection (2) and the test it contains. In that context amendment No. 309, which relates to subsection (2)(c), says: 
''whether it is likely that the new evidence would have been available sooner''.
 My preference is for whether the new evidence could have been available sooner. The distinction may seem narrow, but ''could'' implies the art of the possible, whereas ''would'' applies, it seems, a slightly different test. In the context in question, the stronger burden is placed on the prosecution by the word ''could''.

Simon Hughes: I want to speak to amendment No. 332. It is also an attempt to make clear what we are talking about in this important clause, which will define the test to be used by the Court of Appeal. It is proposed that there be four considerations.
 Amendment No. 332 is about the first of those. I am sympathetic to amendment No. 266. Amendment No. 332 would delete ''it is likely that'' from subsection (2)(a), so that the simple test should be whether a fair trial would be possible. Including ''it is likely that'' seems to give subsection (2)(a) a different meaning. If the meaning were not thereby different, including ''it is likely that'' would be tautologous, as it would be repetitious. No significantly different test is added.
 Life is likely to be made more difficult for the Court of Appeal, as another question will be added that it has to consider answering. If the first condition is meant to be the ballpark condition of fairness and there are subsequent conditions to be added that are sufficiently important, it would be better to amend subsection (2)(a), as we suggest. It is none the less important to add something along the lines of amendment No. 314. 
 All Opposition members of the Committee have regularly raised the issue of media reporting. Whatever else we do not make explicit, we must be explicit on that. I would be grateful if the Minister would consider alternative formulations of words for subsection (2)(a); that is why the amendment is on the amendment paper.

Hilary Benn: We now come to the safeguards provided by clause 66 to ensure that an order of the Court of Appeal for a retrial is in the interests of justice. That is clearly set out in subsection (1). Clause 66 also includes a requirement that courts should consider whether a fair trial pursuant to an order for retrial would be possible. That would require the court to consider adverse publicity and its effect on a potential jury.
 Amendment No. 266 would widen consideration to whether a fair trial would actually occur, and that is unnecessary and wrong. Part 10 seeks to strike a balance of fairness on whether a prosecution case should proceed to a reopened trial, and we are confident that this would be the case subject to the safeguards and the test set out in the Bill. However, the fairness of the trial itself is the responsibility of the court and the trial judge. If a trial can be fair, and that is the test that the Court of Appeal is being asked to consider in subsection (2), it is for the trial court to ensure that it is fair. That is not merely a semantic point.

Dominic Grieve: There is a difficulty here. We must live in the real world. Trial judges have great powers; for example, they have the power to stop a trial completely if they think that it is unfair. In reality, they will be under pressure if the Court of Appeal has already pronounced, first, that it is in the public interest that there should be a retrial and has pronounced, secondly, on whether a retrial will be fair. However, there are some matters that the Court of Appeal will not be able to consider and which will remain the province of the Crown court judge.

Hilary Benn: I agree. Although the Court of Appeal will have considered the requirements placed on it by clause 66, that does not take away from the fact that the trial judge will have ultimate responsibility for
 deciding whether a fair trial can take place. Nothing takes away from the trial judge his or her power to decide that a fair trial is not possible; nothing takes away from their power, to which the hon. Gentleman referred, to stop a trial.
 Ultimately, we must trust trial judges to undertake their duties and responsibilities. For that reason, it is not helpful to put the Court of Appeal in the position that the trial judge may find himself or herself in at that point. It is sensible, having regard for all the arguments, that the test that we should ask the Court of Appeal to apply is whether it is likely that a fair trial, pursuant to the order, would be possible.

Dominic Grieve: If I have achieved nothing else, at least I have ensured an entry in Hansard that can be waved around by defence counsel at future retrials to persuade the Crown court judge that the case should not proceed or that he should intervene. I am grateful to the Minister for that and for having it on the record.

Simon Hughes: I hope that before the hon. Gentleman presses or seeks to withdraw his amendment, the Minister will tell us his understanding of what exactly ''it is likely'' means.

Dominic Grieve: I shall willingly give way to the Minister if he wishes me to do so. With your leave, Mr. Cran, if he wishes to speak further or reply, I shall sit down and ask for leave to say a couple of words after. However, I see no sign that the Minister wishes to avail himself of that opportunity.

Hilary Benn: For the sake of clarity, I hope that I did address that point in the remarks that I have just made.

Dominic Grieve: The Minister certainly touched on the point, although he may not have satisfied the hon. Member for Southwark, North and Bermondsey (Simon Hughes).

David Heath: The Minister has not satisfied me either. He adjusted his ground while he was speaking. He started off by saying that it would be a matter for the Court of Appeal to decide whether a fair trial was possible, only to end up saying that it would be a matter for it to decide whether it ''was likely'' that a fair trail was possible. He has skirted around the compound element of a probability linked to a possibility, which is the point that my hon. Friend made when he spoke to amendment No. 332.

Dominic Grieve: The hon. Gentleman makes a good point, and that is the issue that we were trying to beef up. I prefer my wording, so I shall push the amendment to a vote. The Bill would be improved by its inclusion, and it would not be damaged in any way, even from the Minister's intention, by changing it.
 Question put, That the amendment be made:–
The Committee divided: Ayes 6, Noes 12.

Question accordingly negatived.

Dominic Grieve: I beg to move amendment No. 309, in
clause 66, page 40, line 33, leave out 'would' and insert 'could'.
 I apologise, Mr. Cran, for referring to amendment No. 309 on the previous group of amendments. I erroneously believed that it had been grouped with them. To recap, I wish to replace ''would'' with ''could'', because I believe ''could'' to be better.

Hilary Benn: I do not think that to change the wording from ''would'' to ''could'' would help, because subsection(2)(c) asks the court to consider how likely it is that there has been a failure of due diligence and whether, if there was one, it would have made the evidence available sooner. My problem with ''could'' is that it takes us more in the direction of speculation, and I am not sure that that helps the Court of Appeal to undertake its functions. The court must look at the likely impact of any failure of due diligence, and that is what the Bill provides for. For those reasons, I prefer the formulation ''would''.

Simon Hughes: I want to make the same plea. The difference is narrow, but I marginally prefer the amendment to the original. I know that we went through a great deal of pre-publication consultation, but it would be helpful if the Minister could tell us whether anyone made submissions or commented on these matters. In the interests of open government, I hope that if any information has come the Government's way that we have not been given, he will ensure that we receive it, or that it is placed in the Library. I appreciate that hon. Members sometimes turn their minds to the issues only when they see the amendments and ask themselves the questions prompted by them. I have not thought through all the consequences, but we prefer the amended to the original version.

Dominic Grieve: I hate to disappoint the hon. Gentleman, but I have a horrible feeling that this may not have been the sort of textual examination of clauses that was anticipated. My textual examination often takes place late at night and I substitute my own personal preferences for those of the Minister and his team. Having flagged up the matter, I am happy to leave it to their Lordships' House to determine whether the text should be altered. I am concerned to make the test as strong as possible, which is a real point rather than an exercise in semantics. Having said that, the difference between the two provisions is not sufficient to warrant dividing the Committee, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 314, in
clause 66, page 40, line 39, at end insert—
'(e) the potential impact of any publicity concerning the original proceedings'.
 This is a rather more fundamental amendment. Should we spell out explicitly the concerns of Parliament—already expressed on all sides—about the potential impact of publicity on the ability to have a fair retrial? One would expect the clause to deal with that as part of the general submissions that the Court of Appeal has to examine. It is a crucial issue because a major problem with re-litigation of a criminal case is that much publicity will already have been generated. It is particularly problematic when the retrial is taking place not 20 or 25 years later, but only six or eight months after the event. 
 New evidence might well come to light in a serious case when an acquittal was followed by a huge amount of press comment about the original proceedings. The prosecution might have said that the evidence was so reliable and substantial as to make it highly probable that the person was guilty—or whatever it reads after the Minister has redrafted clause 65—and the public will have been very much alive to the case and to the publicity surrounding it. I am not asking for a prohibition on a retrial, but it should be built into the Bill that the new evidence is serious enough to merit independent consideration by the Court of Appeal.

Stephen Hesford: Is not the problem with the amendment that it narrows the potential discretion of the Court of Appeal? What would happen if the adverse publicity related not to the original proceedings but to the new evidence? It would not be caught by the provision and it could prevent the Court of Appeal from taking the new evidence into account.

Dominic Grieve: I take the hon. Gentleman's point, but I am not persuaded. Subsection (2)(a) already provides for a wide range of considerations to be taken into account, as it prescribes having regard to
''whether it is likely that a fair trial pursuant to the order would be possible''.
 Publicity surrounding something other than the previous trial would be caught by that provision. 
 I acknowledged at the outset that the amendment is, to some extent, an additional element to subsection (2)(a). It has legitimately been argued that it is covered by that provision, but I contend that the issue is so important that Parliament should have the right to identify it separately, which is frequently done in legislation. When we considered the Proceeds of Crime Bill, we highlighted concerns on a number of occasions and included them in a list that otherwise would not have dealt with them. I see no problem or downside. The court would simply have to give separate consideration and state it openly when the time came to make its decision. From that point of view, the measure would be an extra protection.

Simon Hughes: This is an extremely serious matter. We as a Committee in Parliament, and all those interested in justice, should be troubled by the current state of affairs. The hon. Member for Beaconsfield
 (Mr. Grieve) was right to say that the issue had recurred periodically in our deliberations on double jeopardy. There are several matters that the Government have not yet addressed, although I appreciate that we shall come later to clauses that deal with restrictions on reporting and to a particular clause that creates offences in connection with reporting and that establishes provision for fining journalists, editors, newspapers and so on.
 The comments that I have heard came from the Attorney-General, rather than the Solicitor-General, but the Law Officers have made it clear that they keep these matters under close scrutiny. I may be wrong, but I think that the current Attorney-General has taken action on two occasions—certainly one occasion was well publicised—to warn the press, to the extent of legal proceedings, when he believed that they were behaving improperly in anticipating potential trials or verdicts, including findings of guilt. 
 In that context, it would be helpful if one or other Minister could confirm for the record, either now or later, on how many occasions in this Parliament and the previous Parliament—because there was also a Labour Administration then—the Attorney-General has taken legal action against any publisher in relation to any proceedings and the reporting of them. That relates not to retrials, but to first trials, or a trial in a first series of trials. On how many other occasions have the Attorney-General or Solicitor-General given general or specific warnings to the press? 
 One reason why I am concerned is that, in a society with a free press, it is very difficult to undo the damage that is done, even if there can be legal proceedings after the event. The reality is that, once a paper has printed a front page with pictures of people who it says are guilty, or once a trial has been reported and is hugely in the public domain, it is too late to eliminate that from people's minds. 
 Again, I remember from the Lawrence case that one national newspaper printed on the front page pictures of what it called the guilty men. I do not believe that it is possible after the event to punish a very large organisation—in that case, a national newspaper that is owned by a much larger company with significant assets—so effectively that it undoes the potential injustice of what has been done. Even if a significant fine was imposed or the editor was taken to court, found guilty of contempt and sent to prison, that would not undo what had been done, because it would be after the event. In this respect, the law is at risk of not being able to compensate for the adverse effects of such publicity.

Lady Hermon: Let me add to the hon. Gentleman's point a reference to an interview that Sir William Macpherson gave to The Spectator, which was reported in The Guardian on Thursday 1 August 2002. Sir William was the former High Court judge who conducted the official inquiry into the murder of Stephen Lawrence. I was particularly struck by the report of that interview. Although Sir William supported the change to the double jeopardy rule, he is reported as having said that if new and compelling evidence came to light in the Lawrence case, the Court of Appeal would have to consider whether it was
 possible for the suspects to get a fair trial a second time around after the Daily Mail had printed their pictures and branded them murderers.

Simon Hughes: The hon. Lady rightly adds a very clear reminder from the person who was closest to the issue subsequent to the inquiry and who put that question in the public domain.
 There is a danger here of two-tier justice. Famous trials will get publicity in a way that makes it much less likely that there will be a fair retrial, whereas the less famous trials may not receive so much publicity and a fair retrial might be more possible. That is wrong. If Mr. Grobbelaar, Mr. Bowyer or Mr. Woodgate, or anybody else—Mr. Beckham, for the sake of argument—were to appear in court, that case, like other footballers' cases, would be all over the papers. Famous people are entitled to the same rights—but no lesser or greater rights—as somebody of whom no more than a handful of people have ever heard. I worry that it will not be possible to achieve that equity of treatment. Some cases attract wall-to-wall coverage in the media and others do not. I should be grateful if the Minister would address that concern. 
 The Law Commission recommended two types of case to be subject to double jeopardy exemption: murder and genocide. There is now a list of 29 or 30 qualifying offences, two of which, robbery and wounding, are, by any definition, lesser offences. The Minister told us the other day that out of some 3,000 cases of wounding last year, there were 2,000-odd convictions. That leaves more than 1,000 acquittals—more than 1,000 cases per year in just one of the types of case that would be able to come back to court. Those cases, which are run of the mill in every Crown court, would be unlikely to be prevented from being retried because they would not have been widely reported: there is less press interest in them—unless they involve somebody famous—than there is in serious cases. 
 I am also concerned about the location of trials. I assume that it is always within the power of the administration of the court system to determine where a retrial is to be, so a case that, for the sake of argument, has been famous in the north-east, could be retried in the south-west in order to ensure that there is a better chance that the jurors were not aware of what had happened before. That again involves a different type of treatment in certain cases, whereas the criminal justice system is supposed to provide parity of treatment for everybody. 
 Originally, people were tried by their peers and all the people on juries knew the defendant. Now, the jurors are not meant to know the defendant, so there has been a slight change. If a case that had originally been tried in Newcastle Crown court were to be tried in Bristol or Exeter Crown court, the jurors would automatically wonder why they were dealing with it. Thus, in practice, relocation would be only a partial remedy and would not prevent jurors from asking 
 themselves why they were trying the case, and possibly concluding that it was a retrial. 
 How do we prevent a jury dealing with a serious case from working out that the case has been around the circuit before? Whatever we do to the final wording of clauses 65 and 66, if Parliament agrees that the Court of Appeal can determine on application whether in some circumstances there should be an exemption from double jeopardy and the case can be reopened, does the Minister accept that we could not protect the second jury from knowing that fact? The jury may happen to know in some cases, but it is arbitrary: some will know, some will not. That will give rise to prejudice, however well the jury is directed at the beginning of the second trial. The judge can say until he is blue in the face that the jury must presume that the defendant is innocent until proven guilty, but a jury that knows from all the publicity surrounding the case that it is being retried because of new evidence will bear that in mind, even when making finely tuned judgments and balancing the evidence.

Vera Baird: I am following the hon. Gentleman's arguments with great interest. If clause 65 is redrafted, will such a defendant in a retrial be in a worse position than a defendant who has already been convicted but for whom the Court of Appeal has ordered a retrial, assuming that publicity surrounded the case when it was tried for the first time?

Simon Hughes: I do not know. I will think about that. It would be interesting to know the statistics for the number of verdicts that the Court of Appeal quashes and the number of retrials that it orders. I suppose that the numbers are very small. I have not read any academic research, although I imagine that papers have been written on the subject. It is the sort of issue that law reviews would have examined. The difference may lie in the likely mindset of jurors who know that a conviction was quashed, which may give rise to the presumption that something was wrong in the previous trial. The quashing of an acquittal may give rise to the presumption of guilt.

Vera Baird: I suspect that the public sometimes think that convictions are quashed on technicalities and that judges intervene in trials where jurors, like them, passed a verdict of not guilty. There is therefore an opposing argument.

Simon Hughes: That is true. Sometimes when trials are discontinued and the judge orders a verdict of not guilty, the jurors go away bemused because they were sure that the defendant was guilty and because it was clear that only a technical, legal argument prevented the defendant from being found so.
 Have the Government consulted other Departments or the Law Officers? I include consideration that the Department for Culture, Media and Sport might have given to the issue, as it clearly has an interest. Has there been any deliberation with colleagues in Scotland that might seek to address the media frenzy that now surrounds cases that are seen by the courts as being causes célèbres. 
 There were famous trials a hundred years ago. Indeed, Edgar Lustgarten made a living retelling trials that were extremely famous in their day. The 
 difference between then and now is that there was no wall-to-wall coverage. There was no television, and earlier on there was no radio. There were fewer papers and fewer readers. Although there were famous trials in the general sense, there was nothing like the current dissemination of information. I hope that the Government have thought about whether further steps can or need to be taken to ensure that if we go down this road there is even the beginning of a chance of a fair trial for many of the people who come to be retried. This is probably the most serious consideration in getting a fair trial other than the issues relating to previous convictions, which we will come to later. I hope that we can find our way to the best solution, whatever position we start from.

Harriet Harman: My hon. Friend the Minister will respond to the hon. Gentleman's amendments, but perhaps I could tell him now that the legal secretariat to the Law Officers is collating information about contempt cases that the Attorney-General has issued and warnings that he has given. Perhaps I can write to the hon. Gentleman and send copies to members of the Committee. I do not know how far back we will go. Although we can go back beyond 1997, because the Law Officers' Department is the one Department where the shutters do not come down with a change of Government, it may be difficult to retrieve the information. We will go back as far as we can, and I will let him have the information as soon as possible.

Simon Hughes: That is extremely helpful. I am grateful. Perhaps the Solicitor-General might be able later to add to the Minister's comments and tell us whether work has been done or is planned to consider whether the current remedy is sufficient. Are there any discussions either across Departments or between England and Wales and Scotland about that? It is no good having a remedy that is only for England and Wales if publication happens in Scotland or Northern Ireland.
 This is one of those issues that are affected by global communication. That was highlighted by Sunday's little episode and the question whether the papers in Britain could publish stories about German politicians because of the limited controls that can be exercised from one country over the press in another. There are none the less real issues here. I hope that the Committee will accept that this is a matter of serious concern. I also hope that the Minister can help us by answering some of the questions and offer some suggestions on how we can collectively reduce the media abuse. Increasingly often that abuse prevents fair trials first time round and it might increasingly often mar the second-time-round trials envisaged here. Indeed, it might make them entirely impossible unless we get this right.

Hilary Benn: This has been a useful discussion. We have touched on some of the issues that we will come to later. It might be helpful if I point out to hon. Members that responses to the criminal justice White Paper relating to access to information are to be found both on the Home Office website and in the Library. I am sure that the website will now receive many more hits.
 On amendment No. 314, in large measure, the hon. Member for Beaconsfield answered his own question, because as he recognised, subsection (2)(a) already provides for a wide range of circumstances, including those that are identified in the amendment, to be taken into account by the Court of Appeal in deciding whether a fair trial is likely to be possible. In that sense, the amendment is unnecessary, but if it is of assistance, I am happy to confirm on record that the considerations in subsections (1) and (2)(a)—the interests of justice and the possibility of a fair trial—would include the impact of any publicity on the likelihood of a fair trial. That is what is intended, whether that publicity relates to the original proceedings, which the amendment is restricted to, or any other matter. 
 The hon. Member for Southwark, North and Bermondsey raised several points. We will come on to clauses 69 and 70, which are standard provisions, as their wording replicates existing legislation on reporting restrictions. I understood his point about two-tier justice, but my right hon. and learned Friend the Solicitor-General answered that in noting rightly that the problem is no different from that which may occur when a retrial is ordered. 
 The hon. Gentleman asked about jurors in a retrial who recollect that the case has been subject to trial before. It may not happen in all circumstances, and it is not a relevant consideration that would be automatically drawn to their attention, but even if they happen to know, they will be directed to reach a verdict only on the evidence that is put before them. 
 The hon. Gentleman crystallised the broader point in his final question about consideration by Ministers, and he drew attention to an important issue from which we should not run away. The issue is not unique to the provisions on double jeopardy.

Simon Hughes: I was not advancing that argument.

Hilary Benn: Indeed, not. The point that I was going to make is that we cannot resolve the problem in relation to the double jeopardy provisions. The current protections—we will come to the detail later—and the consideration that both the Court of Appeal and trial judge have to give to the prospect of a fair trial after any prejudicial coverage remains the same as for any other trial. The Bill does not include any proposals to deal with the broader issue, but the hon. Gentleman put his finger on an important point in this age of 24-hour communication and news coverage. As we have seen with recent cases, to which as a society we will need to return, those developments change the context in which court proceedings take place and create a new challenge to which we have to respond.

Simon Hughes: Do the Government have anything in mind to deal with the fact that whether a jury may know that they are involved in a retrial could depend on different jurors' recollections? Given that the judge may never know that someone in the jury room has said that the case has been to trial before, have the Government contemplated whether it would be better to take the bull by the horns and allow the judge to confront the issue at the beginning of the trial? He
 could say that some jurors may know that the matter has been to court before, but that it should not affect their starting presumptions. I ask the question because I assume that it must have come up in deliberations between Ministers and advisers. Has thought been give to that, and what were the conclusions, either provisional or final?

Hilary Benn: I undertake to reflect on that point. There are arguments either way, but since we shall be writing to hon. Members with the information that my right hon. and learned Friend the Solicitor-General indicated that she would find, I will also respond to the hon. Gentleman's point.

Dominic Grieve: I am grateful to the Minister for his response, but I intend to press the matter to a vote, if only to draw attention to our concern about clause 66, which I believe to be of fundamental importance. It might also provide some encouragement to the Government to consider the matter carefully and to provide us with further reassurance on Report.
 Question put, That the amendment be made:–
The Committee divided: Ayes 8, Noes 13.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

Simon Hughes: I have two questions and one observation. My first question relates to the provision on time, which we have not debated. Does the Minister take the view that the longer the period since the original trial, the more unlikely a fair trial will be? If not, what is the implication of the time provision?
 My second question concerns the due expedition provision. Is it in the Government's mind that failure to exercise due expedition could be a complete barrier to a trial, or merely a consideration to be taken into account? Will the balance of justice ever be served by someone being tried when the sole reason for the matter not coming to court earlier was an avoidable delay caused by the authorities? Obviously, that relates to the ''protection'' clause. 
 My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I voted for the last amendment, but there are further protections that we would like to see in the Bill, including one similar to that in that amendment. It seems to us, however, that it is better to retain a protection clause to build on 
 than to take that clause out, even if we do not believe that it goes far enough. Therefore, if the matter is pressed to a vote, we shall not vote against.

Hilary Benn: Clearly, the Government think that length of time is a consideration that should be taken into account in applying those tests, or it would not be in the Bill at subsection (2)(b). There may be a consideration in relation to the quality of the recollection of witnesses. That point was referred to in an earlier debate by the hon. Member for Beaconsfield. However, length of time itself may not be a bar, and the classic example of that is DNA evidence.

Lady Hermon: One of the best things that a Labour Government ever did was to make the European convention on human rights part of domestic law. Article 6, which is on the right to a fair trial, states that
''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal''.
 I am not making that up—it is there in black and white. Will the Minister please think about including the phrase ''reasonable time'' in the clause, instead of saying that we can look at evidence from 18 or 20 years ago, which is not a reasonable time?

Hilary Benn: I hear the hon. Lady's point. All the legislation that the House considers is subject to the tests of the European convention, and we live with that. I agree that making the convention part of domestic law was one of the best things that we have done, and I am sure that she and I agree on the reasons why.

Dominic Grieve: The imprimatur of human rights compliance is no more than a rubber stamp on the front of legislation. However, it might help the Minister to know that the thrust of article 6 relates to the period between charge and trial, not the period before someone is brought to justice, although the clear implication is that the longer the period before someone is prosecuted, the more difficult holding a fair trial will become.

Hilary Benn: That is extremely helpful. The other examples that come to mind are war crimes and cases of genocide. Would it be right for the length of time since such an offence was alleged to have been committed to act as a bar? In so far as I understand what was in the minds of those who drafted article 6, I cannot believe that that was their intention. The hon. Gentleman is right. However, he is wrong to say that ECHR compliance is a rubber stamp. It genuinely reflects the view that the Government take during the consideration of all legislation. Judgments can be tested, and people can take their cases to the courts and pray in aid the convention. That is right and proper, which is why the Government incorporated the convention into UK law.
 The reference to due expedition is highlighted as a consideration that the Court of Appeal should take into account when considering whether the interests of justice test is met. In the end, it is for the court to judge whether the due expedition clause should weigh heavily in determining whether the interests of justice would prevent it from making an order. That will depend on the facts of the case. 
 Question put and agreed to. 
 Clause 66 ordered to stand part of the Bill.

Clause 67 - Procedure and evidence

Simon Hughes: I beg to move amendment No. 341, in
clause 67, page 41, line 11, after 'present,' insert
'and public funding must be available to allow for the defendant to be represented'.
 The amendment makes a straightforward point. When the important application to reopen a case is made to the Court of Appeal—that would be new territory at the beginning, and would arise only in rare circumstances after that—the presumption would be that the person who had been acquitted was entitled be present, to be represented and to be publicly funded, if necessary. A later amendment will clarify that entitlement. 
 I hope that the Minister advises the Committee to accept the amendment.

Hilary Benn: I hope that the hon. Gentleman will be reassured when I tell him that public funding will be available for these hearings, for the application by the prosecution to quash the acquittal and for any retrial ordered by the Court of Appeal. I can go into detail about how it would be provided if he wishes me to do so.
 Funding is already available for retrial under section 12(2) of the Access to Justice Act 1999, and a model of the regulation for the application hearing already exists in the form of regulation 3(3) of the Criminal Defence Service (General)(No. 2) Regulations 2001, which deals with quashing an acquittal under the Criminal Procedure and Investigation Act 1996. They are considered incidental to the proceedings. The amendment is undesirable, as section 12 of the 1999 Act refers not to specific types of case, but only to broad categories, and changing the scope of CDS for those purposes would entail a specific reference to the Bill that we prefer to avoid. We would prefer to amend the regulations under section 12(2)(g). 
 The amendment is unnecessary, as the Government have already recognised the need to make funding available for the applications and the subsequent substantive hearings.

Simon Hughes: That sounds persuasive. I am reassured by what the Minister says and I shall take him at his word, but I will still get someone to check it later. If a flaw is discovered, we shall no doubt have the opportunity to return to the matter. There is no dispute on the principle, and on that basis I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 67 ordered to stand part of the Bill.

Clause 68 - Appeals

Question proposed, That the clause stand part of the Bill.

Vera Baird: I apologise for not giving notice that I intended to raise the following issue, which has just occurred to me. An appeal to the House of Lords, as set out in section 33 of the Criminal Appeal Act 1968 is allowed only with the leave of the Court of Appeal or the House of Lords. It is not clear whether it is intended that that should apply in this case or whether the right to an appeal should be automatic. An appeal to the House of Lords with leave—the only way that it can occur—is available only if the Court of Appeal certifies that a point of law of public importance is at stake. Is it intended that that should be a criterion in these appeals, too, or will there be an appeal as of right?
 As a rule, the House of Lords deals only with issues of law, so it will be a novel concept if it is obliged to deal with this issue, which, although it involves a lot of law, might involve hearing witnesses. I am not aware of any case in the House of Lords in which that has been done.

Dominic Grieve: The hon. and learned Lady makes an interesting point. I had assumed that an appeal was to be only on a point of law, the same as any other appeal to the House of Lords. In view of the nature of such applications to the Court of Appeal, there would be few occasions on which one went to the House of Lords, as most require a reconsideration of the facts. However, there may be occasions when the interpretation placed by the Court of Appeal on the facts that might allow a retrial could lead to those who represented the acquitted person to argue that the rules set down in clauses 65 and 66 were not being followed, and that they wanted a legal ruling on the point. That is how I assumed the matter would proceed.

Hilary Benn: I am happy to confirm that clause 68 would allow appeals on a point of law to be made to the House of Lords on decisions made by the Court of Appeal in respect of applications for acquittals to be quashed. The clause would also allow for a defendant to be present at the appeal hearing.
 My hon. and learned Friend the Member for Redcar (Vera Baird) asked about the mechanism. If she agrees, I shall write to her on that point. 
 Question put and agreed to. 
 Clause 68 ordered to stand part of the Bill.

Clause 69 - Restrictions on reporting

Dominic Grieve: I beg to move amendment No. 381, in
clause 69, page 42, line 3, after 'publication', insert
'appearing anywhere in the United Kingdom.'.

James Cran: With this it will be convenient to discuss amendment No. 380, in
clause 70, page 42, line 40, after 'publication', insert
'appearing anywhere in the United Kingdom.'.

Dominic Grieve: We come to the question of restrictions on reporting. Some play has been made by the Government of the fact that a number of those who responded to representations said that it is essential that reporting restrictions be imposed on Court of Appeal proceedings, so that they do not become widely publicised and give rise to the public concluding that the court has arrived at a conclusion that could prejudice a jury's subsequent consideration of the case were a retrial to be ordered.
 I confess that I assumed that ordinary reporting restrictions would apply, but I was struck by the Minister's saying that the procedure for retrial would not apply north of the border. The Scottish Executive have indicated to the Government that they have no desire to see the Scottish legal system altered to cater for the possibility of retrials. Therefore, the issue arises of the operation of reporting restrictions on Scottish newspapers—and not only on their publication but on their distribution in the rest of the United Kingdom. 
 I would be grateful for clarification, because I infer from the restrictions on reporting in clause 69—and from the offences in connection with reporting in clause 70—that it would be possible for a Scottish journalist to attend Court of Appeal proceedings and report them verbatim in a Scottish newspaper, and that nothing could be done about it. Is that a correct inference?

David Cameron: That brings up an intriguing possibility. The editor of The Scotsman is Mr. Andrew Neil, who broadcasts on the BBC. Under the Bill, he would not be able to speak about what was reported in his newspaper.

Dominic Grieve: My hon. Friend makes an interesting point.
 Perhaps I am wrong, but I would be interested to know where the mechanism is in clauses 69 and 70 that would allow restrictions throughout the United Kingdom.

Hilary Benn: The Government are at one with the hon. Gentleman in seeking to ensure that the reporting restrictions cover the whole of the United Kingdom. Clause 272(2) is the provision under which the object that he desires is achieved.

Dominic Grieve: I am grateful to the Minister for drawing that to my attention. I have not had the opportunity to read clause 272(2), but I have just glanced at it and note that it extends to Scotland and Northern Ireland. I therefore infer that the Scottish Executive are agreeable to the law being enforced north of the border and that for us to legislate on that in the Bill.

Hilary Benn: I am happy to confirm that.

Dominic Grieve: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 354, in
clause 69, page 42, line 6, after 'application', insert
'including the fact that the application has been made'.

James Cran: With this it will be convenient to discuss amendment No.353, in
clause 69, page 42, line 8, at end add
'and
(c) the previous trial.'.

Dominic Grieve: Here again, we are concerned with clarifying exactly what will be restricted. Subsection (2) says that the matters to be restricted are ''the application'' and
''anything done in connection with the application under this Part or Part 2 of the Criminal Appeal Act 1968 (c. 19) or under rules of court.''
 The questions arise whether that covers the mere fact that the application has been made, and whether the decision to make the application in the first place should essentially be secret until such time as it has been decided one way or another. The issue is important, and I would hope that the matter was so covered. I seek the Minister's assurance on that. 
 There is also the issue of the previous trial. If the newspapers are making reference to the previous trial as a nudge, nudge, wink, wink to the public when the application is being made, that could go a long way to defeating the restrictions on reporting that we seek. In my view there should be a rather draconian, blanket ban on reporting the fact that such an application is taking place until such time as it is finished.

Simon Hughes: There is obviously regular concurrence between the police and press over requests for silence to be kept and for reporting not to happen. I share the hon. Gentleman's view that that is not sufficient protection in such cases. One should be able effectively to prevent any reporting in advance, and there should be sanctions that follow.
 I absolutely support the hon. Gentleman's second point. It happens increasingly that when the tabloids are worried about publishing the name of somebody in relation to whom an allegation has been made they invariably juxtapose an article about that person, so that all but the most stupid realise, and suddenly think that the person in the photograph on the right is the subject of the story on the left. One has seen that regularly over recent months—it is simply blatant now. That would be exactly the danger. One would find that there would be an article on the same page that would describe the previous trial, or there would be a one-year or two-years-on memorial article that just so happened to appear then. We should not tolerate that, and should take all steps to stop it.

Hilary Benn: I hope that I can offer the hon. Member for Beaconsfield the reassurance that he is looking for on amendment No. 354. The clause already makes it quite clear that reporting restrictions apply to both the application and anything done in connection with it, which would include the making of the application itself. If he at subsections (1) and (2) together, he will find that they say that
''no publication shall, except as provided by this section, include a report of . . . the application, and anything done in connection with the application''.
 I think that that is clear. 
 I should like to reflect on amendment No. 353 and the point that the hon. Member for Southwark, North and Bermondsey made, partly because of the 
 arguments that he advanced, but partly because, in connection with the time line that will work in relation to the provisions for double jeopardy, a person may have been rearrested prior to the point in question. That will be reported. At that stage, the newspapers might choose to refer back to the evidence that was adduced in the original trial. Our objective should be to ensure that reporting restrictions kick in at the same stage as in relation to an ordinary case. I have found our discussion extremely helpful, although the Government are already considering the matter. On the understanding that I undertake to return to the issue, I hope that hon. Members will not press the amendments to a vote.

Simon Hughes: I am grateful to the Minister for being so helpful. I share his objectives, so I am comfortable with the idea that the Government will think about that. Perhaps he will reflect on one more thing. There is a worrying trend, in that, increasingly, the police release information. For example, a raid is about to be carried out and someone is arrested. The information clearly comes from the police, because there is no other source from which it could have come. Although the intention of the police is that the information should be in the public domain, their actions are sometimes unhelpful and prejudicial. They sometimes do it with good intention, to be transparent, but there is a danger that even the well-intentioned second motive may now prejudice fair trials.
 I should be grateful if the Minister would discuss with his colleagues whether clearer rules could be established governing the release of information by the police—be it formally or informally, because the same issues apply. It would be very helpful if he would consider that in the context of the beginning of the process, when reporting becomes relevant, but I hope that he will also consider the wider issue of reporting, not only in relation to double jeopardy, but in the context of the criminal justice system as a whole. As I think the Minister accepts, this is a very live issue, which gives regular cause for concern.

Dominic Grieve: I am reassured by the Minister's comments and grateful that the Government's approach appears to be compatible with my views about what should be done. I look forward to hearing further from him on that point, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 315, in
clause 69, page 42, line 10, after 'made', insert
'with the defendant's consent or in the interests of justice.'.
 There are exceptions to the reporting restrictions in relation to a report of an appeal to the House of Lords or a report of an application to the House of Lords for leave to appeal, and an exception may be granted by the Court of Appeal in any other case. I understand the reason for including those exceptions, but we must have regard to the unusual nature of the proceedings. A person who has previously been acquitted of an offence is being put through a process that greatly interferes with his civil liberties for a second time, so he 
 is entitled to maximum protection, something that the amendment was designed to ensure. 
 I hope that the House of Lords and Court of Appeal would have the interests of justice in mind anyway, so I accept that the words in the amendment may be a little otiose, but there is no harm in including them. It seems legitimate for the Committee to consider the question of the defendant's right to veto publication of information about the trial during the proceedings. I accept that it is most unlikely that circumstances will arise in which the House of Lords or Court of Appeal wants to permit a live application to be publicised but the defendant objects. With great respect to their Lordships in the House of Lords and in the Court of Appeal, if there was such an objection while proceedings were continuing, I would take the view that, given the nature of the proceedings, the defendant's right should be superior to anyone else's, even if it seemed to be intransigent. That is why I tabled the amendment.

Hilary Benn: The Government consider the amendment unnecessary, and I hope that I shall be able to reassure the hon. Gentleman about the reasons for that. Clause 69(4) already caters for the purpose of the amendment, because it provides that, if an acquitted person objects, reporting restrictions can be lifted only if the court, having heard the representations—and I have taken note of what the hon. Gentleman said about the acquitted person's interests in that regard—is satisfied that it would be in the interests of justice to do so.
 It was slightly unclear to me whether the amendment was intended to go further, and give the acquitted person a veto over the lifting of reporting restrictions when it would be in the interests of justice to lift them, or entitle him to have them lifted when that would not be in the interests of justice. If so, I could not agree. The interests of justice should be the test, and the Bill provides for those.

Dominic Grieve: The amendment was intended not to override the interests of justice but to give the defendant a veto over publicity while the application proceedings are current, on the basis that the procedure is on the face of it a major infringement of his civil rights. It is at least arguable that he should have the right to determine the question of publicity while the proceedings are still live.

Hilary Benn: I hear the hon. Gentleman's point, but I remain of the view that in the end the right test would be the interests of justice, having regard to the representations that the defendant could make, which would be provided for by subsection (4).

Dominic Grieve: I dare say that if anyone in the other place thinks that there is an issue to be dealt with, they will pursue it further. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 69 ordered to stand part of the Bill.

Clause 70 - Offences in connection with reporting

Dominic Grieve: I beg to move amendment No.355, in
clause 70, page 42, line 42, leave out 'or publisher' and insert ', publisher or distributor'.

James Cran: With this it will be convenient to discuss amendment No. 356, in
clause 70, page 43, line 6, after 'it', insert 'or distributing it'.

Dominic Grieve: I have lost my place. It is my fault for trying to go too fast in considering amendments. That is always a problem for the Opposition. It is a grave penalty that is visited on Opposition Members.
Simon Hughes rose—

Dominic Grieve: Now perhaps another grave penalty will be visited on us all.

Simon Hughes: I am only trying to be helpful. When the hon. Gentleman elaborates on the arguments about publishers and distributors, will he tell the Committee whether he has had an opportunity to discuss the issue with representatives of the newspaper industry, and received professional advice about whether they would find it helpful to have it clarified?

Dominic Grieve: I have to admit that I have not discussed the amendments with the industry—certainly not at what I should call an official level.
 The issue to which the amendments relate is of long standing—whether restrictions should be applied to those who distribute as well as those who publish newspapers. It could be argued that distributors are not normally likely to peruse the contents of newspapers in great detail, as they pass through their hands at 2 am, to see whether one or another reporting restriction order has been breached. On the other hand, the amendment is intended to highlight the importance of the issue. 
 I am perhaps focusing on a slightly different aspect of the matter from the one about which the hon. Member for Southwark, North and Bermondsey has expressed concern, but it seems to me that we are living, at the start of the 21st century, in an age in which reporting restrictions are increasingly being flouted with impunity. For a variety of reasons, newspapers seem to have got it into their heads that they can get away with it. They have become either sloppy or deliberately contemptuous of the court's power to control their publications. What I would have regarded 15 or 20 years ago as the blanket silence that descended when court proceedings began—when a matter was considered to be sub judice—has been substantially eroded, both in what is said and the manner in which it is said. 
 Of course, one can say certain things in certain circumstances. All kinds of devices seem to be employed to try and get around reporting restrictions. There are exceptions, but on the whole, it strikes me that the Attorney-General—whoever he or she may be at the time—has shown marked reluctance to bring proceedings in order to remind newspapers of their duties. If one were to extend those duties to distributors, the cat would truly be among the pigeons. Newspapers would find it very difficult to continue getting around reporting restrictions, 
 although to make distribution an offence might be harsh on distributors. 
 We may have an opportunity with what is a particularly important provision. Even more so than in the case of the ordinary criminal trial, unless we can get observance of the reporting restrictions, the whole procedure is doomed, so it is singularly important that Parliament look afresh at how reporting restrictions operate. If it is felt that the restrictions need to be toughened up, we now have an opportunity to consider how that might be done.

David Heath: I agree that the present situation is not satisfactory. Would the hon. Gentleman like to comment on how the clause and his amendment would apply to internet publishing? That is often an area that is deliberately designed to circumvent any restrictions that there may be on published reporting procedures. Would his amendment include internet providers as distributors?

Dominic Grieve: Yes, it is quite clear that the internet's arrival is one of the mechanisms by which a coach and horses have been driven through the principles of reporting restrictions. That said, it is possible to prosecute those who contravene reporting restrictions on the internet, although that is partly dependent on where they do it from and whether they lie within the jurisdiction. However, there is no reason in principle why a prosecution should not be brought against those who do so if it is possible to trace them. What may also have to be considered in time is to what extent a fetter can be introduced on the broadcasting of that information through the internet, if it is found to be on the internet. That raises all kinds of other problems, which would take me more time to discuss than I would wish to spend at this stage in Committee.
 There is another important issue, which the Minister will see soon when I come on to another group of amendments. I say this slightly tongue-in-cheek, but perhaps I may be forgiven, Mr. Cran, if I suggest that we might shorten matters by touching on them here. 
 I suggest a rather more draconian sentence for those who perpetrate a breach of reporting restrictions. Level 5 on the standard scale for a large national newspaper is fairly laughable—it is a pinprick. The matter is very important because the justice system in this country has been undermined by the way in which reporting restrictions are being deliberately distorted in several fields. If we are to send out a message, I am afraid that the clang of the prison door behind the odd newspaper editor is probably the only way in which we shall achieve a satisfactory result. I await with interest what the Minister has to say.

Hilary Benn: I am not sure that I shall follow the hon. Gentleman down the road that he went with his remarks, for reasons of self-protection if nothing else. Since we are peering over the fence at the next amendment—

Simon Hughes: No one is watching.

Hilary Benn: That is true. I was going to say that we are discussing matters in Parliament, and that more or
 less guarantees that nobody is watching—more is the pity.
 The hon. Member for Beaconsfield raised an important point. I tried to say in answer to the hon. Member for Southwark, North and Bermondsey that there are several issues concerning the amendment and that he added one or two others. We must reflect on those issues. However, this is not the place to discuss the provisions in the Bill dealing with double jeopardy. The hon. Gentleman answered his own slightly tongue-in-cheek question on distributors, arguing that it would not be appropriate to extend the restriction and the penalty to distributors, as they were much less likely to be aware of the contents of a publication. 
 The clause, in replicating the provisions on reporting restrictions elsewhere in legislation, makes it clear that the burden falls on the proprietor, the editor or the publisher of a newspaper or periodical. They would be guilty of the offence. The same culpability cannot be said to extend to distributors.

Simon Hughes: I agree that it falls within the remit of what the Minister was talking about earlier. In considering these matters, Ministers must reflect on the law of defamation, and unless I am misguided, a person who distributes a libellous document is just as liable for the libel as the person who publishes or produces it. I am keen to have consistency.

Dominic Grieve: I am grateful to the Minister for agreeing that the issue is important. A sentence of 10 years' imprisonment was suggested in new clause 2 in the second set of amendments, which I would like to deal with now. I drafted it slightly tongue-in-cheek; it crossed my mind as I drafted it that I might include it in the schedule of retriable offences. However, I thought that perhaps a little extreme.

Simon Hughes: On a point of order, Mr. Cran. I am slightly confused by the hon. Member for Beaconsfield trespassing into the next group of amendments. I would be grateful to him if he would keep the two matters separate.

Dominic Grieve: I shall say nothing further on the matter at the moment. I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 357, in
clause 70, page 43, line 22, at end insert
''and a term of imprisonment of 10 years''.

James Cran: With this it will be convenient to discuss new clause 2—
Offences in connection with reporting—
''( ) Any person knowingly disclosing information concerning matters in section 69(1) and (2) shall be guilty of an indictable only offence punishable on indictment by 10 years imprisonment.''.

Dominic Grieve: I have already said that the new clause would provide for a sentence of 10 years' imprisonment rather than level 5 on the standard scale, as set out in clause 70(9). It is not quite clear to me whether the offence is indictable, and if so what the
 sentence would be on indictment. Perhaps the Minister will clarify.
 I am concerned that there should be a sufficient deterrent. I accept that 10 years is excessive, and I do not wish to send newspaper editors to prison for 10 years—well, not normally. The penalty ought to be sufficiently strong to act as a deterrent. There have been several notable instances when trials have become impossible because of appalling behaviour by the press.

David Cameron: I recognise that my hon. Friend is unlikely to be part of the charm offensive against national newspaper editors. Will he remind us what the present maximum sentence is for contempt of court by newspapers?

Dominic Grieve: I was awaiting enlightenment from the Minister.

Simon Hughes: My hon. Friend the Member for Somerton and Frome commented that there is a danger that by expressing more widely those views on behalf of his party, the hon. Member for Beaconsfield might undermine all the work done by his party's charm offensive with newspaper editors. I can only say that the strategy has not been entirely successful, and a new one might be worth exploring.

David Cameron: Prison or else! [Laughter.]

Simon Hughes: If debates on the Floor of the House reflect that draconian, preparatory warnings of intervention are the only way to make people comply, that procedure may be worth testing.
 More seriously, I share the view that contravention has become a regular abuse. I interpret the clause to mean that a breach can be only a summary offence, which it should not be. I have said on record for some time that one exception to the principle that I propound—that the presumption that someone should go to prison should apply only to offences of violence—is the offence of interfering with the course of justice, and contravening reporting restrictions would be interfering with the course of justice. 
 My understanding is that the amendment and the new clause do not go down the road of a mandatory sentence. There is some ambiguity about the new clause, but I hope that an aberration by the hon. Gentleman, even late at night when doing his homework, does not mean that he feels that the offence, however large or small, should attract a mandatory sentence.

Dominic Grieve: I think that the hon. Gentleman knows that I do not believe in mandatory sentences. Indeed, I expressed myself somewhat amused at the Prime Minister's belief that firearms offences would be visited with mandatory sentences when they plainly would not.

Simon Hughes: I thought that, but I am glad to hear it, because it was not entirely clear from the amendment and the new clause.
 I join the plea for Ministers to examine making the offence an indictable offence or summary offence with a term of imprisonment. We are talking about short rather than long terms of imprisonment, and it would 
 be beneficial to have that as a remedy, particularly if it could be suspended. An editor or proprietor who was at risk of going to prison if he committed an offence again within a certain period would be much more likely to comply. I am serious about that, as we must make it clear that interfering with the course of justice is unacceptable. It does not matter how high or mighty one is, and the press must be reined in on the issue before the situation gets completely out of control. I have not seen evidence about how often such matters are argued before courts, but counsel for defendants are increasingly citing press abuses in arguing that fair trials are impossible. Our objective of more justice will not be achieved, as there will be fewer trials that result in correct convictions.

Hilary Benn: I will resist the amendment for reasons that we touched on in an earlier debate. Level 5 is currently £5,000, but I understand that a higher maximum fine could be imposed as an exceptional summary maximum penalty. I was asked about the operation of the clause, which replicates existing provisions for contempt of court. A summary conviction will bring a fine of £2,500 or one year's imprisonment.

Dominic Grieve: I am grateful to the Minister, because I was not sure about the penalties. The Government may wish to consider, perhaps not in the context of the Bill but during a global rethink, whether the penalties are sufficient. I suggest that the financial penalties, rather than the penalties of imprisonment, could be re-examined to provide a penalty that bites on a newspaper. I accept that to lock up an editor of previous good character for 12 months would be seen as draconian, but I am not so sure about the finances.

David Heath: The hon. Gentleman is a lawyer and I am not, so I may be off the mark, but when a trial has been abandoned because of the activities of a publisher or proprietor, is there any scope for recovery of costs?

Dominic Grieve: I should not have thought that there was any scope for recovery of costs against a third party. I may be wrong, but I have certainly never heard of it. Substantial costs have certainly been incurred in notable instances. If ever the observance of reporting restrictions was essential for the processes of justice to be done, it is here.
 I am grateful that when we met the Minister of State, Lord Falconer, he took what we said into account, and what had not been part of the package previously then became so. I heartily approve of that, but it has to work. The temptation to subvert it in the undoubted media interest that would be generated may be considerable, and I do not want the whole system to break down because of it. I have no particular desire to lock people up, but the penalties must be sufficient to provide deterrence. 
 Now that the Minister has reassured me on the custody penalties, it is mainly the financial penalties that should be re-examined. Obviously, any judge would be reluctant to send someone to prison and would prefer to impose a financial penalty, but the penalty must be substantial enough to make a large 
 organisation—a newspaper—feel the pinch. For this, as for health and safety at work matters, small penalties—the petty cash—are inappropriate. Larger penalties are needed to send out a clear message and to affect the bank balance sufficiently to lead to a footnote in the shareholders' report.

Simon Hughes: Health and safety is the obvious parallel. I hope that the hon. Gentleman will at least partly endorse the suggestion of my hon. Friend the Member for Somerton and Frome—that one way of making people pay for crimes is to link the costs lost by the state to the costs incurred by the person causing that loss. It would be wrong for the state to incur the costs when someone else has flagrantly broken the rules. Ministers should reflect further on that increasingly frequent problem.
 That is a very good idea and the Minister and the Home Office could usefully consider the wider implications of it.

David Cameron: Just to place the issue in context, I worked in the television industry for many years and my hon. Friend may be interested to know that the Independent Television Commission can fine television companies that break the programme code up to 3 per cent. of their turnover. I recall commercial television companies being fined £1 million in one case and £600,000 in another. That was not for contempt of court, but it gives an idea of the sort of penalties that can be imposed and it relates to his point about notes in shareholders' annual reports. A £5,000 fine would cause no trouble.

Dominic Grieve: My hon. Friend makes a good point. I know of some instances when the television industry breached contempt of court orders, but experience shows that it is far more common in the newspaper industry. Sometimes a breach can be a mistake, an unfortunate disaster, and the authors have to admit that they made a complete mess of it. However, I have sometimes detected slightly subversive reporting in the written media, which is worrying because it suggests a lack of respect for rules that are in place to protect defendants and the trial process.
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn 
 Question proposed, That the clause stand part of the Bill.

Lady Hermon: I shall not detain the Committee long, but I want the Minister to clarify a point relating to Northern Ireland. In a helpful explanation to the hon. Member for Beaconsfield of the extent of reporting restrictions, he referred to clause 272(2), which mentions Northern Ireland. Clause 70(10) states that proceedings for an offence under clause 70 may not be instituted in England or Wales
''otherwise than by or with the consent of the Attorney-General'',
 or, in Northern Ireland 
''otherwise than by or with the consent of the Attorney-General for Northern Ireland.''
 If my memory serves me right—I am not a criminal lawyer—the Attorney-General for England and Wales is also the Attorney-General for Northern Ireland. 
 The Justice (Northern Ireland) Act 2002 indicated that when and if criminal justice is devolved to the Northern Ireland Assembly, whether or not the Assembly is suspended, responsibility for it will remain in Westminster. Only on the devolution of criminal justice and policing would we have an Attorney-General for Northern Ireland and an Advocate-General. Perhaps the Minister knows something that I do not; perhaps the Government are more confident about the devolution of criminal justice to Northern Ireland. Will he check the reference to the Attorney-General for Northern Ireland?

Simon Hughes: First, I pass on my thanks to Ministers for taking on board the general issue of reporting restrictions, which has given us a peg on which to hang further matters. Secondly, as the Minister said that he would look at the matter again, it would be sensible to deal also with the general rules on reporting restrictions, because we are still talking about double jeopardy and retrials. There may be an argument for greater sanctions or penalties, but we need to decide whether the same rules should apply, as a matter of principle, to both first and second time round, or whether tougher rules should apply for the second time round because of the greater prejudice of a second trial. I hope that consideration will be given to both issues, and that the same penalty should not apply in different circumstances.

David Heath: Has my hon. Friend considered whether there might be a read-across from the Communications Bill, which deals with many of the matters that regulate the press and media. There is the potential to co-ordinate the two Bills to provide a better whole.

Simon Hughes: That is an entirely sensible suggestion, but I doubt whether it is possible, as both Bills are being considered in Committee, to join up Government so much that the point made by the hon. Member for Witney (Mr. Cameron) could be linked in to the deliberations of both Committees. However, it is a good idea and I commend it to the Minister. Our business managers may tell us that the opportunity may not come again in the near future. Members of the Committee considering the Communications Bill will be sending out little messages saying that they hope not to have another such Bill in the near future—just as some of us have said that we do not want a criminal justice Bill every year.

Hilary Benn: In answer to the point raised by the hon. Member for North Down (Lady Hermon), I am advised that the formula to be found in subsection (10) is widely used, but she is absolutely correct that, at present, the Attorney-General for England and Wales is the same person as the Attorney-General for Northern Ireland.
 In relation to the point on reporting restrictions raised by the hon. Member for Southwark, North and Bermondsey, I have gladly undertaken to reflect on how to achieve analogous protection to that which currently applies in relation to trials, and I have heard, and in part responded to, the arguments made about 
 general provisions relating to reporting restrictions. Many issues are involved, and the Bill is not he right place to deal with them. However, I have certainly heard the comments that hon. Members have made. 
 Question put and agreed to. 
 Clause 70 ordered to stand part of the Bill.

Clause 71 - Retrial

Dominic Grieve: I beg to move amendment No. 358, in
clause 71, page 43, line 35, leave out '2 months' and insert 'one month'.
 We now come to consider the procedure for retrial. Because the order comes right at the end of the investigative process, the Government clearly believe that it should be possible to move speedily from the order to a retrial taking place. It is most desirable that that should happen. This is a probing amendment. 
 The Minister may argue that the Government want a longer period but, as I have suggested, the amendment is designed to probe why the period of two months was chosen. I am pleased that the period is as short as that, but if it could be shortened I would be even happier, because I think that the process should move with great expedition. I should be grateful to hear the rationale behind the two-month period.

Hilary Benn: The clause allows for a period of two months between the Court of Appeal making an order for a retrial and the arraignment of the defendant on the new indictment. During that time, the prosecution will have to put together its full case against the defendant, but the clause provides safeguards, which means that the court must give leave for that period to be extended.
 The amendment would reduce the period to one month, but the Government do not consider that two months is an excessive period to allow the prosecution at that stage, particularly given those safeguards, to do what needs to be done. In essence, two months is an appropriate period and one month would be too short.

Dominic Grieve: I am persuaded. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 382, in
clause 71, page 43, line 42, after 'he', insert
'or in the event of his death or incapacity, his personal representatives.'.
 The amendment raises a point that I raised with the Minister at a previous sitting. I said that I was slightly unhappy about the processes whereby a defendant lost the status of an acquitted person and wondered how he could regain it if the proceedings against him were then dropped for some reason. The Minister provided some reassurance that it was possible to apply for the original acquittal to be restored. I prefer to use the word ''suspended'', but he preferred to use the usual word ''quashed'', and we had a debate about that, which I do not want to revisit. 
 It seemed to me that, if the defendant dropped down dead between the date of the quashing of his acquittal and his rearraignment before the jury for his 
 retrial, there was no mechanism for his personal representatives to have his acquittal restored posthumously. I believe that such a person is entitled to the restoration of that acquittal, or his family are, so I tabled the amendment to try to provide a mechanism whereby that could happen. It may commend itself to the Minister.

Hilary Benn: I remember the point that the hon. Gentleman raised. His amendment asks a question about what would happen if the person died—

Dominic Grieve: Or was incapacitated—

Hilary Benn: Or became incapacitated after his acquittal had been quashed, but before he had been rearraigned. Clearly, these circumstances are distinguishable from those currently provided for in the clause, as the person is no longer in jeopardy of a conviction, and there is no longer any issue of that nature to force. However, I understand the general point of principle that is being raised. The quashing of an acquittal is simply intended to allow a case to be reopened if there are compelling reasons for that. Our starting point has been that a person who dies or is incapacitated at any time after his acquittal is quashed, but before a fresh verdict is returned, should be in exactly the same position as anyone else on whom such misfortunes fall part way into an investigation or trial. No special provision is needed.
 That said, I should like to reflect further on the general principle to take into account the hon. Gentleman's point. On that basis, I hope that he will withdraw the amendment.

Dominic Grieve: The Minister should think again about this point. I can see the argument. Until a person is convicted, he is not guilty of an offence. Someone who is charged with an offence in the ordinary course of events may die or be incapacitated so that the prosecution decides not to proceed. If he dies, it cannot proceed and if he is incapacitated it may choose not to. In those circumstances, he remains not guilty before the world. It is strange that we are quashing an existing acquittal, which is a statement that somebody has been tried and acquitted. The Government clearly consider that, in the event of an acquittal being quashed against a live defendant and the Crown, for some reason, coming across further information or deciding not to proceed with a retrial, that defendant is entitled not only to maintain that acquitted status but to have it restored.
 In the case of an incapacitated person, as opposed to someone who is dead, the ability of personal representatives to apply on his behalf, rather than his applying himself, has some protection value for him for the future. For a dead person, it is symbolic; but such things matter. The Hanratty case was reopened in front of the Court of Appeal when it was not an issue of direct relevance to anyone other than the family and the public. There should be a mechanism, and I hope that the Government will provide one. It would be a simple amendment and it would give some reassurance as to the way in which the system will operate. Subject to that—I am grateful to the Minister for 
 reconsidering it—I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 71 ordered to stand part of the Bill.

Clause 72 - Authorisation of investigations

Dominic Grieve: I beg to move amendment No.383, in
clause 72, page 44, line 33, at end insert
'and
(c) has sought leave from a judge of the Crown Court on an ex parte application.'.

James Cran: With this it will be convenient to discuss amendment No. 384, in
clause 72, page 45, line 14, at end insert—
'(c) he has obtained leave from a judge of the Crown Court.'.

Dominic Grieve: I ask the Committee to consider a much wider issue in relation to this amendment. An inevitable consequence of the procedure on which we are embarking is that an acquitted person can be subject to a reinvestigation. Many parts of the retrial for serious offences give me a sense of queasiness. The prospect of the re-arrest and reinvestigation, property search and all the other paraphernalia of an oppressive process—what would otherwise be a deeply unlawful act by the police—against a person who has the existing protection of an acquittal gives me the greatest sense of queasiness.
 It is interesting that although the Government have chosen to provide, at the end of the process, the important safeguard of the Court of Appeal procedure to decide whether a retrial should take place, the decision to allow for reinvestigation, which, one can see from reading the text of clause 72, is not a matter to be taken lightly, is an administrative one. It is left to the discretion of the Director of Public Prosecutions alone. 
 I have great faith in the DPP, but he is the representative of the state and the public in bringing prosecutions. That is an important issue. Just as it has been the case—although that might not apply after this Bill is enacted—that the issuing of proceedings or the laying of information requires at least scrutiny by the judiciary, or a judicial figure, before it can be embarked upon, we should not allow such a procedure to be re-embarked upon without some form of judicial scrutiny being provided. 
 I do not want to raise the status of this procedure to that of a detailed investigation, because I do not think that that will be required. However, my strong view is that the Director of Public Prosecutions should seek the authorisation of a Crown court judge before deciding that an acquittal is not a bar to a trial and giving his written consent to an investigation. He could go, or send a representative, to the Crown court on an ex parte application to explain the case to the judge and outline the grounds on which the reinvestigation should take place. He could then secure the court's sanction for what would otherwise be a massive intrusion into the life of an individual who was entitled to the protection afforded by his acquittal. 
 I take a strong view on the issue and unless I get satisfaction from the Minister, I shall press the amendment to a vote—it is that important. The judiciary is there to protect the individual's interests against the state, should it ever use its power oppressively. I am sure that 99.99 per cent. of cases will involve a 45-minute hearing followed by the granting of consent. However, judicial consent should initiate the process.

Vera Baird: Does the hon. Gentleman not think that the DPP's decision could be judicially reviewed? One could introduce a judicial sanction in that way.

Dominic Grieve: Well, one could, but it is difficult to determine whether the process on which one is embarking is readily susceptible to judicial review. After all, once the DPP makes his decision, the police will presumably start scurrying around—sorry, that might be seen as a pejorative term and I did not mean it that way. The police will, however, be doing their investigations. That might prevent judicial review. It might also provide for a little judicial oversight.
 Of course, it is a difficult decision. The DPP will be seized with a massive dossier and will be advised about the issue. None the less, the protection of having a Crown court authorise an investigation commends itself to me. I take the hon. and learned Lady's point that judicial review proceedings might be an option, but that raises difficult issues. For example, will everything be frozen during such proceedings? If so, one argument against them is that they might seriously impede the course of investigations, which will be carried out in the interests of justice. That could raise complicated issues. I was rather happier with the idea of subjecting the issue to judicial scrutiny, because one could then say that the investigation was taking place on the order of a Crown court judge. 
 We cannot escape the fact that the clause proposes a massive alteration to the basic principles that govern the grounds on which someone can be arrested and investigated. If other hon. Members think that the judicial review procedure is the better route, and the Minister says that it would be available, I will consider it. However, the amendment seemed to deal with the problem by removing the idea that it was for the DPP—the state—to initiate what could be seen as an oppressive procedure.

Simon Hughes: The amendment is important and reflects the constitutional balance to which the hon. Gentleman properly referred. It also has a practical implication. To put it neutrally, the decision to reopen a matter—or to trawl for evidence, to put it pejoratively—is in the hands of the independent judiciary, not the state or those who look after our law and order. It is important that we hold to those constitutional principles. When we debated the Terrorism Bill and the Anti-terrorism, Crime and Security Bill, I regularly argued that crucial decisions on intervention should be authorised by the judiciary. It seems to me to be a safeguard that would be in everyone's interests. I hope that the Government will see that it is in their interest too.

David Heath: I do not have a great deal to add to what my hon. Friend the Member for Southwark, North and Bermondsey said, other than that I instinctively had sympathy with the amendment. Then, having thought it through, I wondered whether it would simply amount to an extension of process without any real new safeguard, given that both an assistant chief constable—or, in the case of the metropolis, a commander—and the Director of Public Prosecutions would be involved. As the hon. and learned Member for Redcar said, the actions of the DPP are subject to judicial review. However, that is a clumsy way of acquiring the imprimatur of the judiciary.
 It is important that the prosecuting authorities, either the police or the DPP, should not be the sole arbiter of whether to proceed with what will inevitably be an intrusive process. Therefore, although in practical terms I expect that the amendments would have little effect, in principle and in constitutional terms some judicial scrutiny of the process is important. Therefore, I should be interested to know why the Minister appears to feel that the amendments are unnecessary.

Hilary Benn: We have rightly spent some time debating the various safeguards that the Bill contains, but I am not persuaded by the arguments advanced in support of the amendments.
 The process set out in clause 72 is triggered by subsection (5), which covers the making of an application by an officer. He needs to be able to demonstrate that new evidence relevant to the application is available or known to him, or that he has reasonable grounds for believing that such new evidence is likely to become available or known to him, as a result of the investigation. The Director of Public Prosecutions is the appropriate person to take the decision at that point about whether to allow the police to reopen an investigation into an acquitted person. The DPP is qualified and experienced enough to take a decision at that stage in the process, bearing in mind all the subsequent safeguards that we have already debated. 
 Furthermore, clause 72(6) makes it clear that the DPP is not able to give consent unless he is satisfied, first, that the investigation is likely to produce 
''sufficient new evidence to warrant the conduct of the investigation''
 and, crucially, that 
''it is the public interest for the investigation to proceed.''
 Thus, the DPP is required by the clause to give very specific consideration to the public interest in deciding whether to allow the relevant powers to be exercised. 
 The Government consider that having the DPP take the decision provides a safeguard against the acquitted person being harassed by the police. I think that the hon. Member for Southwark, North and Bermondsey was the first person to comment in Committee on this issue, on which the hon. Member for Beaconsfield also touched; it is the reason why subsection (3) protects against any of the actions in question being taken either with or without the acquitted person's consent. That is intended to prevent the police from leaning on 
 the acquitted person to co-operate. Nothing mentioned in subsection (3) can be done without the consent of the DPP. At this stage of a re-investigation, it is proper for the decision to be taken by the prosecuting authorities rather than the courts. Involving a Crown court judge in the process would make it more cumbersome. 
 Finally, I am happy to confirm what my hon. and learned Friend the Member for Redcar, who is not in her place at present, mentioned in her intervention. The DPP's decision on the obligations under clause 72 would be judicially reviewable. In answer to the hon. Member for Beaconsfield, the investigation would be stayed while that judicial review was carried out.

Dominic Grieve: The Minister's response gives rise to two interesting issues. If the investigation is judicially reviewable and stayed for the duration of the judicial review proceeding, that could be a serious handicap to the police in carrying out the re-investigation. It could enable the potential defendant to conceal evidence, for example. However, I understand the issue, and the provision may be a sufficient safeguard.
 We did not have the chance in Committee to consider the charging provisions earlier in the Bill, because we ran out of time. I regretted that, because some of the changes brought about in the charging provisions removed judicial scrutiny and turned charging into a mere administrative activity, albeit one that must be carried out according to certain rules. I assume—it has only just occurred to me—that that activity is also judicially reviewable. 
 I would prefer a mechanism of judicial control, because I dislike the way in which we are departing from that principle. Under this provision, a state administrator—that is what the DPP is, however fair, good and robust his qualities—who is distinct and different from the judiciary, is able to authorise a procedure that would be a gross interference with a person's freedoms and rights. I wonder whether the inclusion of such a mechanism of judicial control might prevent quite a number of judicial review proceedings. I am therefore not persuaded by the Minister, and to set down a benchmark on the issue I intend to press the amendment to a vote. 
 Question put, That the amendment be made:–
The Committee divided: Ayes 8, Noes 14.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

David Heath: I wonder whether the Minister can help me. All the provisions in the clause apply to an officer, which is defined in clause 80(1) as an officer ''of a police force''. Often, an investigating force other than a police force investigates many of the offences that come under the provisions. Such offences might be investigated by Her Majesty's Customs and Excise or by the security services. I am not clear how the clause will apply to officers of investigating forces other than police forces. The provision would be rather empty if it allowed for intrusive investigation on the part of officers other than police officers, whereas the only people prevented from doing so were police officers. What is the position with respect to other investigating forces subject to Home Office or Treasury control?

Simon Hughes: The hon. Member for Beaconsfield, no doubt in the interests of expedition, did not move amendments Nos. 317 or 318. However, they touch on two issues of principle. One is whether the Minister will look at the list in subsection (3). It strikes me that arresting or questioning not only the suspect but those associated with them triggers the same issues. That might be rather narrowly drawn and the point would apply to the rest of the list.
 There is also a perfectly proper point that the provision is all about ensuring that the beginning of an investigation has an appropriate trigger. It would be ridiculous to create an artificial distinction between the most central parts of the investigation and the wider investigations. I hope that the principle—the objective—is for there to be an investigation authorised appropriately, whether with or without judicial authority. It will be with if we get our way, and we shall, I hope, persuade Ministers of that. 
 Irrespective of that point, however, I should be grateful if Ministers would consider whether the provisions are drawn widely enough, otherwise there might be indirect ways of starting an investigation that are not covered by the trigger mechanism that is intended.

Dominic Grieve: I did not move amendments Nos. 317, 318 or 359, because on reflection I felt that the clause dealt with the matter adequately. Although the hon. Gentleman is right to say that the issues are legitimate matters for consideration, those amendments were not workable, because they touched on the operation of the relationship between the police and other individuals. He is right that the issue is legitimate. There are different ways of harassing somebody—indirectly through his family, for example. However, that would be unreasonable and unlawful in any event, even if such an investigation were not about to be embarked on.
 There is an issue, but on balance my decision was not so much to do with shortening the Committee's proceedings but because of the fact that, having tabled the amendments and thought about them quite late at night, I felt in the cool light of day that they were 
 probably not necessary. I hope that the Minister can provide some reassurance of that.

Hilary Benn: If, in the course of his late night or early morning considerations, the hon. Gentleman has managed to reassure himself on his amendments, who am I to disagree with him? The argument that he advanced as to why the Bill provides sufficient protection is exactly where the Government are coming from on the matter.
 In response to the hon. Member for Southwark, North and Bermondsey, the purpose of subsection (3) is to identify a small category—I accept that it is small—of investigatory activities that are sufficiently intrusive on the privacy of an acquitted individual to require the personal and written consent of the Director of Public Prosecutions before they are undertaken. There are already many safeguards relating to the exercise of those powers. However, the clause takes that extra step in the limited circumstances listed to provide a further layer of personal protection to the acquitted person. The Government think that that is the right list. 
 In relation to the point that the hon. Member for Somerton and Frome raised on Customs and Excise, we are aware of the issue, and I am grateful to him for highlighting it. We shall need to consider whether it is necessary to include Her Majesty's Customs and Excise investigators who might be responsible for investigating drugs offences in particular. 
 Question put and agreed to. 
 Clause 72 ordered to stand part of the Bill. 
 Sitting suspended. 
 On resuming—

Clause 73 - Urgent investigative steps

Dominic Grieve: I beg to move amendment No. 319, in
clause 73, page 45, line 22, leave out 'superintendent or above' and insert 'chief constable'.

James Cran: With this it will be convenient to discuss amendment No. 323, in
clause 74, page 46, line 15, leave out 'superintendent or above' and insert 'chief constable'.

Dominic Grieve: I am grateful to those members of the Committee who decided that it was worth while to stay the course and enable us to conclude our proceedings. The clause provides a mechanism that enables an officer, without having to go the DPP for his authorisation, to take any action for the purposes of an investigation when each of a series of conditions is met. It states:
''The first condition is that the investigation is authorised by an officer of the rank of superintendent or above . . . Such an authorisation may be given before or after the start of the investigation . . . The second condition is that—(a) new evidence which would be relevant to an application . . . in respect of the qualifying offence to which the investigation relates is available or known to the officer authorising the investigation, or (b) that officer has reasonable grounds for believing that such new evidence is likely as a result of the investigation to become available or known to him 
. . . The third condition is that the action is necessary as a matter of urgency—(a) to prevent the investigation being substantially and irrevocably prejudiced, or (b) to prevent death or serious personal injury.''
 I found the clause rather difficult. I tried to think of circumstances in which it would be necessary for such steps to be taken in a reinvestigation in this fashion. After all, the whole nature of the reinvestigation and retrial process is that it is the revisiting of a previous case in which someone has been acquitted. It would hardly have the flavour of the police having to intervene as an emergency, because the crime to which it relates was committed prior to the first trial, yet here we are going one stage further than the DPP's administrative scrutiny. 
 We are saying that a police officer can take emergency action, which may involve interference with someone's liberty, in respect of an offence of which he has previously been acquitted, when, by its very nature, one would not expect the reinvestigation process to be an emergency process at all. It strongly suggests that there will be a preliminary investigation by the police before the DPP is asked to look into the matter. While I can understand that happening in respect of outsiders or areas that do not concern the defendant, I find it difficult to see why the defendant would have, or need to have, any contact with the police at that preliminary stage. 
 This is a fairly draconian step, and I cannot but think that a chief constable, not simply someone of the rank of superintendent, is the right person to give such authorisation. Otherwise, there is a serious danger that such interference could become routine. That is the key issue in both amendments, but there is another issue concerning death and serious personal injury, to which I shall return. 
 Will the Minister clarify in what circumstances the clause would be invoked and consider whether it might not be more sensible for a chief constable to give the authorisation, because the clause provides for the authorisation of actions that would otherwise be unlawful? If it is a matter of intervening to protect a witness who might be engaged at the retrial—not because he is being threatened by the acquitted defendant to prevent him from co-operating with the police—the clause is unnecessary, because the ordinary powers of the police to protect a citizen from the actions of another person would be quite sufficient.

David Heath: The hon. Gentleman has helpfully outlined the difficulties with the clause. Under what circumstances would it be appropriate to use clause 73, rather than clause 72? It is hard to envisage circumstances that would not constitute the commission of a new offence, in which case no authorisation would be needed for the police to take action.
 That part of me that relates back to my involvement with the police thinks that, were such a situation to arise, it would be rank inflation to require authorisation by someone of the rank of chief constable. If urgent action was needed, the superintendent would be the appropriate district commander and available officer of sufficient 
 seniority to authorise the investigation. My problem is that I cannot envisage circumstances in which it could or should be used, given that this is an exceptional process in every way, which Parliament may or may not be prepared to sanction under limited terms and with sufficient safeguards. 
 The clause effectively overrides that process and introduces a further exception to the exception. The Minister may have clear examples in mind of the circumstances in which the police would be unable to make appropriate investigations in relation to the current offence, especially to prevent death or serious personal injury. I would have thought that there were clear grounds in such a case for a police officer to take action, irrespective of whether someone had been acquitted in a previous trial. The Minister may have examples in mind of the circumstances in which the police should be able to take action without following the proper procedures in clause 72. 
 I am not sure whether I entirely support the amendments in their present form, but they provide a helpful vehicle for investigating the Minister's thinking on the subject. My inclination is to reject the entire clause, unless he has a sufficiently compelling and reliable argument in support of it.

Hilary Benn: For the reasons alluded to by the hon. Gentleman, I am not persuaded that the appropriate rank of person to authorise the arrangements under the clause is chief constable. In consultation with the Association of Chief Police Officers, the Government have reached the view that a superintendent would have the appropriate seniority and operational experience to take a decision to authorise an urgent reinvestigation. Chief constables are far less readily available to deal personally with such urgent situations than superintendents. What if the chief constable was away?
 As for the sort of circumstances to which the provision would apply—what about those in which information is received? I accept that, in the main, the clause 72 route should be used. However, it would be unwise, having gone to all the effort to change the law on double jeopardy, not to provide for urgent circumstances. An example might be an instance in which information is received from an informant that a particular piece of evidence is to be found at a particular place, and that if the acquitted person were to become aware that he was being reinvestigated, he might decide to dispose of it. That is why subsection (5)(a) gives as a condition that meets the test of a matter of urgency 
''to prevent the investigation being substantially and irrevocably prejudiced.''
 Thus, information that the weapon that was used in a particular murder is to be found in a cupboard would be a good reason for taking urgent investigative steps. Provision has to be made for such situations; otherwise the circumstances described in subsection (5)(a) might come to pass.

Dominic Grieve: I think that that is a bad example. The police would be able to intervene in those circumstances under their existing powers. They would be able to find something on which to hang it as it is. If a revolver was in a top drawer, the police would have no problem in going to the house and searching it for that weapon. What worries me about the clause is that it is an open invitation to the police to carry on, as a matter of routine, investigating offences for which somebody has been acquitted, long after the acquittal has taken effect.

Hilary Benn: I do not accept that argument. I honestly believe that clause 73 is about providing for those circumstances. The hon. Gentleman says that other powers would apply. In the case of a revolver, that might be so. However, for a knife it would be a different matter. It is sensible that there should be provision to cover the rare eventualities in which urgent steps need to be taken because there is a risk to the evidence that might otherwise come to light, and the investigation into the crime might substantially and irrevocably be prejudiced. I do not put on the provision the construction that other hon. Members have—that this is an instrument for ongoing oppression of people who have been acquitted. That is not what it is about. It is about covering the small number of eventualities that might arise in which urgent action is needed in order to set in train the process to which all the clauses relate, subject to all the tests and requirements including—in relation to this clause—the authorisation of a superintendent.

Dominic Grieve: The Minister has persuaded me on the superintendent issue. I accept that the chief constable's role is rather difficult to justify. Although I am willing to withdraw the amendment, I shall return to the matter on subsequent amendments, because the issue of the powers that we are giving to the police to continue, quite speculatively, investigating acquitted offenders for their original offences on what seems to be a slender basis is important. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 320, in
clause 73, page 45, line 23, leave from 'may' to 'after' and insert 'only be given'.
 This is really a matter of clarification of the statement that the authorisation 
''may be given before or after the start of the investigation.''
 I do not understand the wording of that sentence. If it is after the start of the investigation, the authorisation has already been given by the superintendent. The amendment probes that issue. I took it to mean that an officer could do something even before an investigation had been authorised. If I am wrong, perhaps the Minister will clarify the matter, as the sentence does not appear to make sense.

Hilary Benn: In the vast majority of circumstances, the authorisation should be given before an investigation. However, for the reason that I gave on the previous clause, there may be circumstances that are so urgent that officers need to act immediately and to seek approval as soon as possible thereafter.
 Subsection (3) will apply only if it is necessary to prevent the investigation from being ''substantially and irrevocably prejudiced''. Irrevocably is a pretty strong test: it means that there is a risk of losing something that one can never get back if one does not act in a timely fashion.

Dominic Grieve: I am grateful to the Minister, but the clause seems to contain some drafting gobbledegook. Presumably, the investigation referred to in subsection (3) takes place under clause 72, so the subsection should spell it out. If that is not the case, the subsection is nonsense. Why should it be necessary to be able to make an application after the start of an investigation under clause 72?

Hilary Benn: The clause also covers situations that could arise if, for example, evidence was found while a suspect was being investigated for another offence. For that reason, and for the reason that I gave in answer to an earlier question, it is necessary to provide for the urgent investigative steps set out in the clause.
 In answer to the hon. Gentleman's last point, the process that must be gone through under clause 72 does not prevent an officer from then taking the actions set out in clause 73 for reasons of urgency.

David Heath: I am confused by what the Minister said. He complained earlier about rank inflation, but there is now rank deflation. It appears that a constable can do anything he likes in certain circumstances, provided he gets the okay from a more senior officer afterwards. If the action is taken on the basis of clause 72, but in circumstances in which the officer cannot immediately obtain authorisation for his investigation, he is required under the fourth condition in clause 73(6) to have the proper consent under clause 72, which involves his seeking the support of an assistant chief constable or a commander to apply to the DPP without undue delay.
 What on earth is the point of a subsequent authorisation by a superintendent in between the two events—the officer taking an action and that action being qualified, without undue delay, by the proper procedure under clause 72? What is the function of the superintendent? Is he merely an intermediary between the detective sergeant or the constable who has taken the action to placate his assistant chief constable, who may have to explain it to the DPP? I understand the granting of authorisation before investigation and the system whereby proper authorisation is given by the ACC and DPP, but I do not understand authorisation being given by a superintendent after the event, but before it has been taken to a senior officer for authorisation under clause 72. 
 The Minister has not made a valid case for the use of clause 72, although he said that it might assist in an investigation while another crime is being investigated. I hope that the safeguards that we are building into the Bill do not prevent investigation of another offence. An acquittal for an offence does not give someone an amnesty from investigation into any future offence, and there is therefore no impediment to a police officer investigating an individual for another offence. If that investigation provides evidence that subsequently 
 proves to be of use, so be it. I do not understand the difficulty that clause 73 seeks to remedy.

Dominic Grieve: I agree with the hon. Gentleman. Clause 72 provides a mechanism by which the police can, for example, tell the DPP that they have obtained evidence from someone who came to them privately and re-examined forensic material, all of which can be done without the defendant knowing about it or having to be contacted—the time has come for them to carry out an informal investigation and they want the DPP to give them authorisation. As far as I can tell from the wording of clause 72, once the DPP has given that authorisation, the powers of the police are identical to those that they would have in the course of any criminal investigation against the defendant.
 I understand what the Minister says about clause 73, but there might be circumstances in which, before applying for that authorisation, the police discover evidence during another investigation or from what someone has told them, which requires immediate action. There is the question whether we should allow them to do that, but I understand the logic of saying that, in those circumstances, an officer can ask a superintendent if he can carry out a clause 73 investigation, rather than a clause 72 investigation, for the purposes provided for in clause 73. 
 I also understand that, in those circumstances, the superintendent can give authorisation prior to a clause 72 investigation being authorised, but in view of the fact that clause 72 gives such extensive powers, I do not see how an officer needs a power under clause 73 to take action once a clause 72 investigation is up and running. To that extent, clause 73 appears to be gobbledygook, or a belt-and-braces job that is completely unnecessary as it provides a separate mechanism for issuing authorisation. 
 I hope that the Minister will reconsider the clause.

Lady Hermon: An issue that has troubled me greatly about clause 73 is that the DPP and the Court of Appeal have to agree that there is new and compelling evidence to trigger a retrial. Clause 73 is triggered in exceptional circumstances simply by new evidence, but there is no mention of the word ''compelling''. That is an extraordinarily intrusive power to give the police service, when the evidence may not even be compelling.

Dominic Grieve: I agree. It is difficult to see when clause 73 will be legitimately used, although I am afraid that I can think of all sorts of occasions, to which I shall come in a moment, on which clause 73 may be used improperly and contrary to what Parliament and Ministers have in mind. However, I understand that there may be circumstances in which an emergency arises.
 For example, an officer could be sitting behind his desk in a police station when someone comes in and says that she wants to talk to him. She says, ''My husband was acquitted 15 years ago of committing a murder, but he was guilty. He keeps a diary that he puts behind a cabinet in the loft, and he has recorded all the things that he did at that time. He coerced me 
 into silence, and on top of all that the knife he used is in the top drawer of the cupboard downstairs. He takes it out as a souvenir to look at it. The murder weapon was never found, you know.'' 
 I can fully understand that, in those circumstances, a power under clause 73 is needed, but if an investigation is already under way, as sanctioned by the DPP under clause 72, there is no conceivable need for the power provided by clause 73(3), which is an authorisation given after the start of the investigation. I believe that the drafting is wrong, unless the Minister can persuade me otherwise. Perhaps I have misunderstood. It is possible that subsection (3) refers to a clause 73 investigation, rather than a clause 72 investigation, but in that case it is even more gobbledegook. For whatever reason, the drafting has gone funny.

David Kidney: I think that I can explain. First, too many investigations are mentioned in clause 73, and subsection (2) should refer to ''the action'' rather than ''the investigation''. Secondly, if the police had no reason to question an acquittal until someone told them something that was vital to deal with straight away, clause 73 would apply. If they had an idea that an acquittal could be challenged and began the work to collect the evidence, but had not got the DPP's authorisation, they would not have the extensive powers in clause 72(3). That is the lacuna that clause 73 fills.

Dominic Grieve: I thank the hon. Gentleman, but I shall take another example. The hon. and learned Member for Redcar referred to a case that is likely to be reopened if the Bill is passed. From that, I assume that various police officers during the past 10 years might have taken witness statements from people and obtained evidence that would enable them to conduct a full investigation if they had the power to do so. The fact that someone has been acquitted does not mean that the police are not allowed to open their ears to the circumstances surrounding the case history. There might be a perjury offence, for example, so I do not see any fetter on the police apart from not being allowed to take the steps provided for in clause 72(3).
 I am grateful to the hon. Member for Stafford (Mr. Kidney) for providing illumination where darkness was prevailing—I begin to see the glimmer of light—but, in those circumstances, the authorisation provided for in clause 73(2) is otiose. If something is not needed, it should not be in the Bill. As far as I can see, the actions that the police may not currently undertake, which are to listen and take evidence from anyone they like, are what should be authorised in an emergency.

David Heath: The hon. Member for Stafford has been helpful, and he shares my interpretation of an investigation as meaning actions subject to clause 72(3) in pursuit of an investigation. I lost contact with him when he said that the work might have started before the authorisation, because I would argue that
 the police cannot start until the authorisation is given. It certainly would be helpful if the Minister changed the wording so that we are clear as to what we are talking about. Are we are talking about actions in pursuit of an investigation that would otherwise be unlawful under clause 72(3) or the investigation as a whole?

Dominic Grieve: Will the Minister give me an assurance that he will look again at that wording, because even if it represents an attempt to achieve what he wants, it is far from clear? I would be happier if we had clarity about what is being sought in a clause that I find difficult to understand. I question the need for the power to take action after a clause 72 authorisation has been given, if that is what is meant. If the situation is as the hon. Member for Stafford described it, I still do not think that the measure is necessary because the police have those powers anyway. I do not think that it needs to be spelled out in the Bill.

Hilary Benn: This has generally been a useful discussion. First, it may help the Committee to know that clause 73(3) refers to a clause 73 investigation. Indeed, subsection (1) states:
''Section 72 does not prevent an officer from taking any action for the purposes of an investigation at a time when each of the following conditions is met.''
 Subsection (3) states: 
''Such an authorisation may be given before or after the start of the investigation.''
 That is the investigation referred to in clause 73(1). 
 Secondly, I was asked why authorisation might be given before or after the start of the investigation. I tried to explain earlier that there might be circumstances in which it is urgent for the officer to act in such a way and then seek the authorisation of a superintendent subsequently. At that point, conceivably, if the superintendent were not persuaded of the reason given by the officer, he could refuse authorisation. He might argue that what is done is done, but that authorisation is not possible because the rest of the considerations in clause 73 have not been met.

David Heath: That does not answer the question why the officer who has taken such actions in advance of authorisation did not go directly to the ACC for his authorisation through a proper process, but went to a superintendent instead. I understand why a superintendent would give emergency authorisation, but I do not understand why he would need to give retrospective authorisation when there is a procedure under clause 72 for full authorisation. When time is no longer of the essence, because the matter is retrospective, why should he not go through the proper process?

Hilary Benn: The answer is that we think that a superintendent or above should be the person who gives the authorisation in that circumstance.
 The hon. Member for Beaconsfield said that he could not conceive of any circumstance in which there would be a need for urgency once a clause 72 process had started. I can conceive of such circumstances.

Dominic Grieve: The problem is not urgency, but that once a clause 72 investigation were up and running, the police would have the powers anyway. They would not need the powers in this clause.

Hilary Benn: I was just about to come to that point. One needs to make a distinction here. After many years, an informant may come forward to say that a body is buried in concrete on a farm. That would clearly be important evidence, and an application would be made under clause 72, which must be considered by the DPP. While that were still being weighed, and until the DPP gave a decision, the actions in subsection (3)(a) to (e) could not occur.
 At that point, an informant could go to the police to say, ''You know I told you that the body was buried under the concrete. He has bought a jackhammer and he is digging up the ground now''. In those circumstances, there must be a power to enable urgent action to be taken. In that case, it would be necessary to prevent the investigation from being substantially and irrevocably prejudiced. For that reason, and I grant that these will be very limited circumstances, the powers are needed. That is why clause 73 speaks of ''urgent investigative steps''.

Dominic Grieve: The Minister's example is not the best. An informant may come forward to say that a body is encased in concrete on the farm and that the acquitted person is digging it up with a jackhammer, but the police currently have ample power to intervene. They would be investigating a murder committed by a person unknown, and the acquitted individual would be interfering with the course of justice.
 The new powers are not required. That illustrates my point that we seem to be bending over backwards to enable officers—that is what clause 72(3) does—to act on their own initiative against an acquitted person in a way that would be unlawful in an investigation. That is not something that an officer could do legitimately, such as preventing the digging up of a body or going on to land because he has been told that there is a body on it. He can do such things and then seek a superintendent's consent. I intend to vote against the clause, because it should be deleted. The subsection is not necessary.

David Heath: I do not want to labour the point, but we have heard the Minister's example: the body is in the field and the chap is working with his jackhammer. What does Detective Sergeant So-and-so do? He picks up the phone to his super and says, ''I have a real problem. I need to act—give me the authorisation.'' If he acts without a superintendent's authorisation—he might have to if the situation calls for urgent action—what is the point of getting a superintendent's permission afterwards when he could just as easily have gone through the proper process, which allows a full range of investigation? An officer could tell the assistant chief constable what he did and why, and the assistant chief constable could then get permission from the DPP.

James Cran: Order. This is turning into a speech.
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 12

Question accordingly negatived.

Dominic Grieve: I beg to move amendment No. 321, in
clause 73, page 45, line 30, leave out paragraph (b).
 The amendment would delete subsection (4)(b) of the clause and, pursuing the discussion that we have had, give an officer licence to carry out a fishing expedition. That officer would have to have 
''reasonable grounds for believing that such new evidence is likely as a result of the investigation to become available or known to him.''
 If someone gives information to the police, that, I suggest, would be new, or potentially new, evidence. Does the Minister agree? 
 It is important to establish what category of information in subsection (4)(b) would entitle an officer to act on his own initiative. On the face of it, it seems to me that subsection (4)(b) could justify a police officer, after seeing his superintendent, or even before doing so, in his decision to pop into Mr. Bloggs's house one afternoon on the basis that he could look for evidence on which to base a retrial, and thereby earn brownie points and get rapid promotion to sergeant. 
 It seems to me that subsection (4)(b) gives extraordinary licence to the police, bearing it in mind, as I said to the Minister, that the powers under clause 73 are not required for the police to carry out background investigative work. Such background work—asking questions of third parties, reconsidering the evidence, mulling things over or sending items for scientific examination—does not involve the defendant and is not an attack on his civil liberties. 
 As I said to the hon. and learned Member for Redcar, I assume that such investigations must already have happened in a large number of cases, without the powers provided for under clause 72. I am concerned that the proposed power is open to abuse. Although I am not trying to wreck the retrial process, I need to be persuaded that the power is needed to make the retrial process work before I will vote for such a clause.

Stephen Hesford: Will the hon. Gentleman not accept that the point is the reverse of the one that he makes? Subsection (4)(b) is included so that the officer cannot go on a fishing expedition. He must come to a genuine conclusion that there is something on which to base his actions. If the subsection was not included, the officer could go on a fishing expedition on the merest whim, without having come to any prior conclusion.

Dominic Grieve: I am not sure that I entirely agree. At present, under subsection (4)(a), the condition for initiating an investigation under clause 73 would be that some evidence
''is available or known to the officer authorising the investigation.''
 However, under subsection (4)(b), that condition is no more than 
''reasonable grounds for believing that such new evidence is likely as a result of the investigation to become available or known to him.''
 I believe that that condition is not really a fetter on his actions, although I see the hon. Gentleman's point. The subsection does mean that a purely arbitrary exercise of power could not be justified without the officer having to give some grounds for it, but it gives him a pretty free rein to carry out such action. We should bear it in mind that what is under discussion is not the officer talking to a third party—unless I have misunderstood it—but his carrying out the actions provided for under clause 72(3).

Hilary Benn: I understand the argument that the hon. Gentleman makes, but I should point out to him that there are four conditions that must be met for the provisions of clause 73 to operate. He focuses on subsection (4)(a) and (b), but in addition, the action must be
''necessary as a matter of urgency''
 to fulfil the requirements of subsections (5)(a) or (b), and the fourth condition must also be met, that given 
''the urgency of the situation it is not reasonably practicable to obtain that consent before taking the action.''
 That is a very hard test.

Dominic Grieve: I understand the provisions of clause 73(5) and (6), and will return to that in a moment. I also understand that those provisions would be an extra fetter. However, will the Minister clarify for me the circumstances in which subsection (4)(b) would be needed to justify the officer doing the things listed in clause 72(3)? That is what we are talking about; it is not just calling in to speak to a third party who, he has heard from somebody else, might be able to cast light on the offence. If that is the power that is required, then I understand what is being talked about. However, that power already exists. I keep making the point, but the Minister has not said whether he agrees with me. There is nothing to prevent the police from acting if they are approached by somebody who says that they should speak to Mrs. Bloggins, who might tell them something that would help with their reinvestigation. Is the Minister seriously saying that the police cannot do that now? If he is, I understand why we need subsection (4)(b), but I do not think that that is what its aim is.
 Subsection (4)(b) is there to enable a police officer to go and do the things provided for in clause 72(3). It is extraordinary that we should be legislating for that to be allowed on what is little more than a hunch. If we give officers the power to interfere in that way with an acquitted person, we provide what is potentially a powerful tool for police oppression. I am happy to be persuaded out of that view. However, it is a genuine concern. If the Minister cannot answer it today, perhaps he can write to me detailing exactly why 
 that provision is there in that form. I shall be very happy to hear from him. For the moment, I am unconvinced.

David Heath: I do not want to repeat the arguments that have been put by the hon. Member for Beaconsfield. However, I, too, have difficulties. I suspect that the provision is lifted from clause 72, where it is relevant. There is a symmetry between clauses 72 and 73, but that does not necessarily make it equally applicable to both.
 I should like to make two points. The first is to pick up the observation of the hon. Member for North Down that the clause refers to new evidence, without attaching any weight to whether it is likely to be compelling evidence. The second is that it applies to the officer, not to the authorising officer. The authorising officer has a remarkably free hand. The superintendent or above who authorises action under clause 73 does not have the same requirements for consideration as does the officer who takes the action. That seems bizarre. In the previous clause, the requirement is that the assistant chief constable, who is the officer making the application, has to have regard to those things. In this clause, it applies simply to the constable, sergeant, inspector or whatever who is taking the action and who has to seek the authorisation of a superintendent or senior rank, either in advance—which I would hope—or retrospectively, which is pointless, but let us not cover that ground again. 
 It seems anomalous that it is not clear what considerations the superintendent has to make in granting the authorisation—the clause is silent on the matter. It might be implicit in the considerations that the officer has to take in seeking the authorisation, but it is not explicit in terms of what the authorising officer has to take into account when agreeing the application. Will the Minister consider that?

Hilary Benn: Let me give an example, which I hope will be helpful. Subsection (4)(b) is emphatically not about permitting fishing expeditions. Suppose that information is received that a weapon can be found at a certain place—namely, the premises owned or occupied by the person who was acquitted. Clearly, finding the weapon would be new evidence and the information received would provide reasonable grounds. That explains the wording of subsection (4)(b).
 We are dealing with a matter of urgency where the risk is that the weapon can no longer be found in a certain place, presumably because the acquitted person has taken steps to dispose of it. Having fulfilled the second condition, the third has to be fulfilled—that it is ''a matter of urgency''. It cannot be a fishing expedition, as it must be an urgent matter—in this case, to prevent the investigation from being ''substantially and irrevocably prejudiced''. I remind hon. Members that that is about as high a test as it is possible to apply. In simple terms, the vital evidence may disappear for good unless we act quickly. Otherwise, searching the premises owned or occupied by the accused is specifically precluded under clause 72(3). The protections were put in place precisely in response to general concerns about the police using the 
 double jeopardy provisions to harass people. Clauses 72 and 73 must be viewed as working in concert. 
 I submit as vigorously as possible that the circumstances that I have described demonstrate precisely why clause 73 is necessary: otherwise, a crucial piece of evidence could disappear for ever, which surely none of us would want.

Dominic Grieve: I followed the Minister's argument, and I am about half persuaded. Part of the problem concerns what counts as evidence. If it is evidence, it falls within subsection (4)(a), so paragraph (b) is unnecessary. The question is whether new information constitutes viable evidence: it all depends on the nature of the information. An anonymous tip-off may be no more than that, but I am troubled about the wide powers provided in the clause. I may return to the issue later, but I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 385, in
clause 73, page 45, line 36, leave out paragraph (b).
 This is the same argument with knobs on. The police do not need the power ''to prevent death''. Subsection (5) states: 
''The third condition is that the action is necessary as a matter of urgency . . . to prevent the investigation being substantially and irrevocably prejudiced''—
 I can understand that—or 
''to prevent death or serious personal injury.''
 The police have no need of such a power, as ample common laws are already in place to do precisely that.

Vera Baird: Once the police are into reinvestigation territory, are they not prohibited from carrying out any of the actions listed in clause 72(3) before the DPP gives consent without an express power to do so? That is what the provision is about. The police would not be entitled to arrest someone for a reinvestigation—even in extremis, which is worrying—because the power to do so is expressly taken away under clause 72.

Dominic Grieve: I disagree. If the police are aware of the possibility of an individual dying, by either foul play or suicide—the circumstances in which we can know about possible death beforehand—they already have ample power to take action, because they will be acting not in the investigation of the offence of which the person has previously been acquitted but to prevent either the commission of a further offence or a suicide.
 I submit that the same applies to serious personal injury. The police often break down doors when they hear that milk is piling up outside. If they knew that someone was going to a garage to gas himself in a car, they could intervene and would be fully justified in doing so. If they were told that a defendant who was acquitted in a past inquiry had decided to kill Mr. Bloggs, who went to see them yesterday to say that he had information that that acquittal might be wrong, they would have immediate powers to intervene without their being granted under the clause.

Vera Baird: The hon. Gentleman may be right, but I am concerned that if one begins an investigation
 preparatory to going to the Director of Public Prosecutions under clause 72, the one thing that an officer involved in that investigation may not do is arrest the would-be defendant, because he is banned from doing so under clause 72(3). If the only way to prevent the death was to arrest Mr. X, the officer would not be entitled to do so because of clause 72(2)—he would be involved in a reinvestigation. That is my concern about rubbing out the extra power to allow him to do that.

Dominic Grieve: I still do not believe that the power is needed. The officer would be prevented from arresting or questioning the person, from searching him, premises owned or occupied by him or a vehicle, from seizing anything and from taking his fingerprints—in relation to the original offence. What the hon. and learned Lady suggests cannot apply. If it did, anyone who had been acquitted could say to the police for the rest of his life, ''I'm terribly sorry, but you can't investigate me for anything. Even though I happen to have killed my next-door neighbour yesterday, you can't touch me. I was acquitted of something before.'' That is a serious point.
 I appreciate that the hon. and learned Lady is trying to be helpful, but I cannot see how clause 72(3) or any other power under the clause can act as a fetter on the police in investigating another crime and preventing the commission of a further crime. If I am wrong, I hope that the Minister will tell us, because we could be doing something pretty terrible in passing the legislation.

David Heath: Is not it clear from the opening words of clause 72 that it applies to the investigation of the commission of a qualifying offence? Clearly, a new offence of suspected murder or whatever is not a qualifying offence under the terms of the clause, so the police are perfectly free to take any action that they feel is necessary.

Dominic Grieve: I agree. I do not want to labour the point, because we have to hear from the Minister, but at the moment I am minded to press the amendment to a Division, not because it involves some great issue but because on the whole I like to have legislation that makes sense and is compatible with common sense. The police do not require the power, because they already have it.

Hilary Benn: We discussed subsection (4)(b), and I made my views clear. On reflection, I think that the point from the hon. Member for Beaconsfield about the powers that the police have if they have reasonable grounds for suspecting that a new offence has been committed was well made. If he undertakes to withdraw the amendment, I shall reflect further on that point and return to it.

Dominic Grieve: The Minister has cheered me up no end. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: What is the qualification for the authorisation of an investigation under clause 73(2)?
 I am not clear that there is any qualification other than the one under subsection (7), that the authorisation ''be given in writing''. Nor is it clear to me what matters the superintendent has to take into account when giving that authorisation. The clause does not qualify or fetter that.

David Cameron: What consideration was given by the Minister and his draftsmen to simplifying the clause and issuing more guidance? We should bear it in mind that the police will have to read and understand it.
 One general point occurs to me from listening to this and previous debates. We are trying to do two things. First, we want to stop the unreasonable reinvestigation of people who have been acquitted. Secondly, we want there to be a set of clear and understandable rules about what the police can and cannot do in such circumstances. The Minister can think about my suggestion, and reject it on Report if it makes no sense, but would it not be simpler to impose a blanket ban on the reinvestigation of crimes of which people have been acquitted unless it is sanctioned by the Director of Public Prosecutions—with the one proviso, already mentioned, that if something urgent occurs, the police should have 24 or 48 hours in which to seek the DPP's permission retrospectively? 
 As for the rest, why not issue guidance on what the police can and cannot do when reinvestigating crimes rather than doing it though such complicated clauses? I worry that the police will get slightly lost. Having listened to the points made by the Front Benchers from both Opposition parties, it seems that the police may sometimes be nervous of investigating people for committing new crimes who have previously been acquitted of crimes. What I suggest would have at least one advantage: the police would not to have to plod though complicated laws that they did not understand if guidance was available.

Hilary Benn: In answer to the hon. Member for Somerton and Frome, the authorisation referred to in clause 73(2) is authorisation having regard to the conditions in subsections (4), (5) and (6).

David Heath: What is to be authorised?

Hilary Benn: What is to be authorised is those considerations that are implied and pretty clear from clause 73. The hon. Gentleman asked what was the purpose of the authorisation; it is because someone will have to make a judgment—and the clause specifically provides for an officer of the rank of superintendent or above to make that judgment.
 In answer to the second point raised by the hon. Member for Witney, given the seriousness of the change that we are making by amending the rules on double jeopardy, the Committee has rightly taken a considerable time to ensure that the rules, safeguards and conditions applied to making the change are fully set out, and that is why they are specified in the Bill and not in regulations. It is another safeguard. 
 Question put and agreed to. 
 Clause 73 ordered to stand part of the Bill. 
 Clauses 74 to 76 ordered to stand part of the Bill.

Clause 77 - Bail and custody during and after hearing

Dominic Grieve: I beg to move amendment No. 386, in
clause 77, page 49, line 2, at end add—
'(b) in the event of the acquittal of the defendant on any retrial, he should be entitled to compensation for any period he has spent in custody prior to and during any proceedings under this Part of the Act.'.
 This is a simple issue. It is a principle of our law that if a person is held in custody pending trial, there is ordinarily no remedy, unless there are exceptional circumstances relating to subsequent action for malicious prosecution. Usually, there is no compensation for that. I think that it is generally accepted that the administration of justice would be difficult if compensation was provided for. However, under the procedure in question, such a rule should apply. If someone has been acquitted of an offence by a jury, and the police subsequently, with the DPP's approval, decide to reopen the investigation, in the course of which they re-arrest the person and detain him, and it is decided that he should be deprived of his liberty during the investigation and trial, which lasts several months, it seems to me that that person is entitled to be compensated by the state if the outcome of the process is a second acquittal. If the person is convicted, the issue of course does not arise. 
 We cannot get away from the fact that the process that we are considering, which has been proposed for understandable reasons, is a massive change to the principle of our liberties in this country. In view of that, a new compensation regime should apply to it. It can be clearly distinguished from other examples of the same kind, and it would be proper to ensure that someone who is put in jeopardy in this way twice, and inconvenienced and deprived of his liberty as a result, should, if acquitted a second time, be compensated for what he has been put through by the state.

Graham Allen: Presumably, if the person were found guilty he should have an additional period added to the sentence because of the fact that he had enjoyed perhaps many years' liberty, having evaded justice in the first place.

Dominic Grieve: That is an interesting observation, but I do not think that there is any equivalence between the two concepts. I accept that if a person is acquitted on the second time round, he might count himself fortunate—or perhaps unfortunate; I do not know. It would depend on his circumstances at the time. He might consider that he would have been happier starting his sentence earlier, but then I suppose he should have pleaded guilty. It is probable in cases of the kind that we are considering that the person would be in prison for a very long time, because they involve serious offences.
 There is an issue to be dealt with. I fully accept the basic principle that being deprived of liberty for a trial process is something that a person might have to endure. However, if it happens a second time, and the jury again return a verdict of not guilty, compensation should be paid.

Graham Allen: There may be people other than the offender whom we could think about, such as the victim—perhaps a murder victim or the victim's family, or people affected by some other horrendous crime. They, too, might consider that if someone had got away with something for two or three years there should be an additional sentence for the anguish and hurt caused. It might be difficult for a lawyer to see it in those terms, but from a victim's point of view it could be a painful and protracted experience.

Dominic Grieve: I accept entirely that the victims of crime suffer very much. Indeed, in certain instances, a victim—if he is alive—is entitled to compensation from the Criminal Injuries Compensation Board. The state has provided for that, even though a personal injury claim might not be possible. I fully accept that many people suffer very much through the criminal justice system. However, we are concerned with a decision taken by Parliament that, contrary to our normal rules and practices, and for reasons that we think are justified by public policy, it may be necessary for someone to be put through the trial process twice, even though his first acquittal was, on the face of it, completely regular, and could not be quashed for any reason of procedural irregularity.
 We are not talking about cases in which someone is tried twice because the jury could not return a verdict. That is covered by the ordinary rules of procedure, and sometimes must be borne. We are considering a completely new regime, and I am bound to say that if the state does not succeed on the second occasion in achieving the result that it has thought right, and the jury acquit, it will be a bold man who maintains that the person is guilty, so he must be entitled to the protections that his acquitted status gives him, one of which is to be compensated for being put through the process again. Compensation should be reasonable, not punitive, and should reflect the inconvenience that the person has suffered, and doubtless his loss of income for that period. 
 Parliament must send out an important message that it does not embark on this process lightly. It is simply saying that people can be retried as a matter of routine when the state thinks that they should because it believes that they have committed serious offences. There is a need for a compensatory mechanism. I commend the amendment to the Committee.

Hilary Benn: May I pick up on a phrase that the hon. Gentleman used at the end of his contribution? He talked about people being retried ''as a matter of routine''. We have spent three sittings debating anything but matters of routine. We have been debating—whether or not we all agree—carefully constructed clauses.

Dominic Grieve: I am grateful to the Minister. The point that I was trying to make was that this is not a routine procedure but an extraordinary procedure that we have accepted. It should not be embarked on lightly by the state, precisely because of the civil liberties implications. Surely compensation is justified if the state is found by a jury to have got it wrong.

Hilary Benn: I am grateful to the hon. Gentleman for that clarification. I did not mean to misrepresent him in any way. The Government feel that this is the right change to make, and that is why we are having this debate. Although I understand the argument behind the amendment, a person who faces a retrial for a serious offence under clause 77 is subject to the same safeguards as anyone else who faces a criminal charge, as is set out in the Bail Act 1976. For example, decisions on bail or on remanding in custody are for the courts to take. We have, in particular, made the initial bail decision in retrial cases a matter for the Crown court, in recognition of the nature of the offences and the provisions.
 However, I am not persuaded that we should set a precedent for compensation in retrial cases, as it would not be available to any other person remanded in custody who is subsequently found not guilty. The circumstances about which the hon. Gentleman is concerned are indeed a consequence of the change in the law. We think that a change should be made, but his concerns are not sufficient to persuade me that we should not follow the logic of the change that we are making.

Dominic Grieve: We must not prejudge the issues that will join the defendant and the Crown in that second trial. We must avoid the assumption that the man was guilty, was lucky to get off the first time, and if he has been acquitted the second time he is even luckier.
 One would rather hope, in view of the procedures on which we embark, that the conviction rate on retrial for such offences, if we are doing our job properly, should be 99.999 per cent., but strange things always happen in the criminal justice system. In the past 30 years we have treated with the maximum opprobrium individuals who have been convicted of committing appalling offences, yet we have had to accept 19, 20, 25 or 27 years down the road that, having heaped invective on them, it appears that they are not guilty, or at least that their convictions are unsafe and unsatisfactory. 
 I do not rule out in this funny old world that, some time in the next 20 years, we could end up retrying someone under these provisions, only for the Court of Appeal to overturn the decision 15 years later. That is the human world that we live in. Human justice is fallible, and we must accept that. 
 As citizens, we must accept our rights and obligations. One of those is that one is not compensated if one has the misfortune, as an innocent person, to be put on trial and acquitted, even though the disruption to one's life might be considerable. In some cases, people's lives are destroyed, despite acquittals that the whole of society fully accepts thereafter as justified. We accept that as part of the slings and arrows of outrageous fortune that are visited on people. With the provisions, however, we are quite deliberately doing that twice over, because of the certainty that the correct, guilty verdict will result. Heaven knows, we have been discussing the matter for the past few days. It troubles me that when someone is acquitted again we do not say sorry in some tangible form for the disruption caused.

Vera Baird: The hon. Gentleman said that we should compensate a person because the state has got it wrong twice—

Dominic Grieve: No, because he would have been detained.

Vera Baird: What has the state done to justify compensation if a person is acquitted the first time around, there is then new and compelling evidence, the state goes through all the proper procedures that we are instituting and gives him another fair trial, and he is then acquitted?

Dominic Grieve: That brings me back to my original point that many people—some in the Committee and some outside—take different views. We think that the principle of double jeopardy should not be interfered with, as we are planning to do, because it is a serious attack on an individual's certainties and civil liberties. We have chosen to do it, however. As the hon. and learned Lady knows, I have explained that there are divisions in all political parties. I am willing to co-operate to make the provisions work. I am not voting against these measures—I support them. I can see that there are public policy grounds for them, whereby the public demand that under certain circumstances it would be an offence against all the principles of justice for a person not to be tried again. That is despite all the perfectly good arguments that the Liberal Democrats, the hon. Member for North Down, and others—some in the Conservative party and some outside—have urged, that whatever the issues, Parliament should not embark on such a course at all. I simply say that the amendments would perhaps soften the blow. Parliament should perhaps recognise the issue, by providing for a compensatory mechanism to somebody who has been put through the process twice over, because of Parliament's decision on public policy grounds.
 I have the impression that I do not have the Committee's support, so I shall press the matter to a vote, although I regret doing so. I think that in such exceptional circumstances compensation should be paid.

Vera Baird: I am grateful to the hon. Gentleman and have great respect for his views. I do not in any way take lightly what he advocates. However, those who argue against that step say that there is a danger of harassment. If the provisions were used improperly, and resulted in harassment, there would certainly be an action for compensation.

Dominic Grieve: I accept that, and that there might be grounds for claiming malicious prosecution. However, I take my view quite independently of that. Above all, the point is that the person has been detained in custody—the hon. and learned Lady will see that that is provided for—and that there has been a deprivation of liberty in the trial process. There might be circumstances in which trials take place without the person's being detained in custody at all. I also suspect that the judiciary might bend over backwards to avoid custody, unless the risk of absconding or interfering with the course of justice is thought to be so great that someone should be locked up. If someone is not already inside for another offence when the procedure
 is carried out, which might often be the case, or if he is at liberty and has been leading a normal life for some time, the judiciary might be loth to deprive him of his liberty. If so, I would certainly not seek compensation for him.
 There is a powerful argument—it is no more than an argument, and I shall not press the amendment to a vote—for recognising that we are taking a grave step in public policy terms. If the retrial turned out not be justified, and the jury opted for acquittal, it would be right to pay compensation to the defendant, who would have been detained in custody for an offence of which he had previously been acquitted and who would have been put through the trial process again. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 77 ordered to stand part of the Bill. 
 Clauses 78 and 79 ordered to stand part of the Bill.

Clause 80 - Interpretation of part 10

Question proposed, That the clause stand part of the Bill.

David Heath: I shall be brief, because the sitting is lurching towards a conclusion.

Mark Francois: It is now.

David Heath: Thank you.
 When I asked about the definitions of the terms ''officer'' and ''police force'' in this part of the Bill, the Minister was kind enough to say that he would look again at the position of Her Majesty's Customs and Excise, which is a relevant consideration. I also referred to the security services, and I hope that he will elucidate their position. However, there are many other investigative bodies in the context of government, some of which have powers of arrest, while others do not. It is important that we are clear about which bodies and officers of the state have powers under the Bill. For instance, what is the position as regards an investigation on Crown land that is in the possession of the Ministry of Defence? I assume that Ministry of Defence police would be officers under the definition in the clause, but I would like that clarified. Military police might also be involved, but I am not sure that they would be covered by the clause. 
 The definitions of the terms ''officer'' and ''police force'' raise complexities that have not been addressed. At some stage, the Minister might like to elucidate those terms by providing a schedule that sets out which investigative forces have powers under this part of the Bill and which are forbidden from investigating an individual's activities. He may intend only someone with the office of constable to have such powers, but it would be helpful to know.

Hilary Benn: I gladly undertake to look into the hon. Gentleman's points, and I shall respond to him and to other Committee members in writing.
 Question put and agreed to. 
 Clause 80 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at seventeen minutes to Seven 'clock till Thursday 23 January at ten minutes past Nine o'clock.